Resolution 94-21080 RESOLUTION NO. 94-21080
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA REQUESTING THE
ATTORNEY GENERAL FOR THE STATE OF FLORIDA TO ISSUE
AN ATTORNEY GENERAL OPINION CONCERNING THE
AUTHORITY OF THE CITY OF MIAMI BEACH TO ENACT
LEGISLATION EXTENDING THE NOTICE PROVISIONS IN
SECTION 83.57, FLORIDA STATUTES FOR THE TERMINATION
OF RESIDENTIAL TENANCIES WHICH' ARE MONTH-TO-MONTH
OR OF SHORTER. DURATION.
WHEREAS, the Florida Residential Landlord and Tenant Act, as
codified in Part II of Chapter 83 of the Florida Statutes,_ sets
forth rights and remedies with respect to the rental of dwelling
units; and
WHEREAS, in Section 83 .57, Florida Statutes, the Florida
Legislature has provided that where a tenancy is from month-to-
month, and without , a specific duration, the tenancy may be
terminated by either party by giving written notice of not less
than fifteen (15) days prior to the end of any monthly period; and
WHEREAS, present conditions in the residential rental market
in the City of Miami Beach indicate that there is a hardship
imposed upon tenants who are required to relocate on fifteen (15)
days notice or less; and
WHEREAS, the . Mayor and City Commission are in doubt as to
whether they are preempted by the State from enacting legislation
on the subject of landlord and tenant law and wish to obtain an
opinion from the Attorney General for the State of Florida in this
regard; and
WHEREAS, the Attorney General for the State of Florida will
not issue an opinion relating to the powers and duties of a public
body unless such opinion is requested by a majority of the members
of that body,
NOW THEREFORE, BE IT DULY RESOLVED by the Mayor and City
Commission of the City of Miami Beach, Florida that the Mayor and
City Commission hereby request from the Attorney General for the
State of Florida an opinion concerning their authority to enact
legislation effective in the City of Miami Beach extending the
notice provisions in Section 83.57, Florida Statutes for the
termination of residential tenancies which are month-'to-month or of
shorter duration.
PASSED AND ADOPTED this 2nd day of March , 1994 .
ATTEST:
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Cam' �►�-�
CITY CLERK MAYOR
FORM APPROVED
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BY
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OFFICE OF 1*1-E CITY ATTORNEY
64 eaLAtini Wee/A
F L O R I D A
LAURENCE FEINGOLD P.O.BOX O
CITY ATTORNEY ofie` MIAMI BEACH,FLORIDA 33119-2032
TELEPHONE{305)673-7470
TELECOPY (305)673-7002
COMMISSION 'MEMORANDUM NO: ) -•
(71
DATE: MARCH 2, 1994
TO: MAYOR SEYMOUR GELBER
MEMBERS OF THE CITY COMMISSION
CITY MANAGER ROGER M. CARLTON
FROM: LAURENCE FEINGOLI1, �� ���
CITY ATTORNEY U
SUBJECT: AUTHORITY TO REQUEST ATTORNEY GENERAL OPINION
Recently, the attached request for an Attorney General Opinion
was submitted on the issue of whether the City of Miami Beach is
• preempted by the State in enacting legislation extending the notice
provisions for the termination of residential tenancies which are
month-to-month or of shorter duration. (See Exhibit A) . However,
based on their attached policies, the Attorney General's Office has
refused to respond without assurance that the majority of the
Commission seeks such an opinion. (See Exhibit B, III) . A similar
request was also denied when submitted by Commissioner Liebman.
Under Section 16.01(3) of the Florida Statutes, the Attorney
General ". . .may, upon the written requisition of. . . [an] officer of
a. . .municipality. . .give his official opinion and legal advice in
writing on any question of law relating to the official duties of
the requesting officer." (See Exhibit C) . Although it .is the
opinion of the City Attorney's Office that the subject request is
appropriately requested by the City Attorney, in order to comply
with the policy of the Attorney General's Office, we hereby seek to
confirm the Commission's support in seeking this Attorney General
opinion. The only other alternative would be to judicially
challenge the Attorney General's present posture which appears to
conflict with the Florida Statute.
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AGENDA
ITEM �-�-
DATE 3--2- ! 4
1700 CONVENTION CENTER DRIVE—FOURTH FLOOR—MIAMI BEACH, FLORIDA 33139
•
OFFICE OF THE CITY ATTORNEY
liircAvni Wald
F O R I D A
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LAURENCE FEINGOLD sIfcA .\` MIAMI BEACH.FLORIDA 33119-2032
CITY ATTORNEY TELEPHONE(305)673-7470
TELECOPY (305)673-7002
February 15, 1994
Robert A. Butterworth
Attorney General
State of Florida
Department of Legal Affairs
The Capitol
Tallahassee, FL 32399-1050
•
RE: REQUEST FOR OPINION CONCERNING AUTHORITY OF THE CITY OF
MIAMI BEACH TO ENACT LEGISLATION EXTENDING THE NOTICE
PROVISIONS FOR TERMINATION OF TENANCIES PROVIDED IN
SECTION 83.57, FLORIDA STATUTES.
Dear Mr. Butterworth:
Pursuant to Section 16. 01(3) of the Florida Statutes, I hereby
request a formal advisory opinion from the Attorney General 's
Office relating to my official duties as Miami Beach City Attorney
with regard to the facts outlined below.
Since March, 1990, I have served as City Attorney for the City
of Miami Beach, Florida. In this capacity, and pursuant to Section
21 of the Miami Beach City . Charter, it is • my official
responsibility to perform all duties imposed upon me by the City
Charter and Code. My duties as Chief Legal Counsel representing
the Miami Beach City Commission include advising the City's
legislators of their ability to enact legislation affecting the
City of Miami Beach.
Under the "Florida Residential Landlord and Tenant Act", as
codified in Part II of Chapter 83 of the Florida Statutes, the
rights and remedies of landlords and tenants are- set forth with
respect to the rental of dwelling units. Specifically, in Section
83.57, Florida Statutes, the Florida legislature has provided that
where a tenancy is from month-to-month, and without a specific
duration, the tenancy may be terminated by either party by giving
Exhibit A
1700 CONVENTION CENTER DRIVE-FOURTH FLOOR-MIAMI BEACH.FLORIDA 33139
Robert A. Butterworth
Attorney General
Department of Legal Affairs
Page 2
February 15, 1994
written notice of not less than fifteen (15) days prior to the end
of any monthly period.
Present conditions existing in the City of . Miami Beach
indicate that there .is a hardship imposed upon tenants who are
required to relocate on fifteen (15) days' notice or less. This
situation could be alleviated if local legislation were enacted
which provides for at least a thirty (30) day period of time for
landlords to notify tenants that their tenancies, which are month-
to-month or of shorter duration, are terminated. Should the City
wish to enact such an ordinance, it is unclear whether the Florida
Residential Landlord and Tenant Act would preempt the City of Miami
Beach from legislating on this subject.
Accordingly, I respectfully request an opinion on the
following issues:
WHETHER CHAPTER 83 OF THE FLORIDA STATUTES
PREEMPTS LANDLORD AND TENANT REGULATIONS TO
THE STATE?
In the event that the above-stated issue is answered in the
negative, a second issue arises as follows:
WHETHER AN ORDINANCE OF THE CITY OF MIAMI
BEACH PROVIDING FOR THIRTY (30) DAYS '
NOTIFICATION BY LANDLORDS OF THE TERMINATION
OF A TENANCY WHICH IS MONTH-TO-MONTH OR LESS
WOULD CONFLICT WITH THE FLORIDA RESIDENTIAL
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LANDLORD AND TENANT ACT? '
LEGAL ANALYSIS
It has been recognized that preemption may be implied from
comprehensive state coverage of a subject. See City of Miami Beach
v. Rocio Corp. , 404 So. 2d 1066, 1069, n.5 (Fla. 3d DCA) , rev.
denied, 408 So. 2d 1092 (Fla. 1981) . However, §166.021(3) , Florida
Statutes, states:
The legislative body of each municipality has
the power to enact legislation concerning any
subject * matter upon which the state
legislature may act, except: . . . (c) Any
subject expressly preempted to state or county
government by the constitution or by general
law. (emphasis added) .
1700 CONVENTION CENTER DRIVE—FOURTH FLOOR—MIAMI BEACH.FLORIDA 33139
Robert A. Butterworth
Attorney General
Department of Legal Affairs
Page 3
February 15, 1994
Upon review of Chapter 83 of the Florida Statutes, it does not
appear that the subject of landlord and tenant regulation has been
expressly preempted to the State.1
In areas which are not preempted by the State, concurrent
legislation may be enacted by . municipalities if it is not in
conflict with state law. Wyche v. State, 619 So. 2d 231, 238 (Fla.
1993) ; Rocio, 404 So. 2d at 1070. "An ordinance which supplements
a statute's restriction of rights may coexist with that statute. . .
whereas an ordinance which countermands rights provided by statutes
must fail. " Rocio, id. (citations omitted) . Assuming the absence
of a preemption problem, it would appear that the nature of the
proposed City ordinance would supplement the rights of tenants and,
thus, not conflict with state law.
Should you require any additional information in order to
render a formal advisory opinion on the above-stated issues, please
do not hesitate to contact me at (305) 673-7470. Your assistance
is greatly appreciated.
Very truly yours,
ic0 ;;CALY
Laurence Feingold
City Attorney
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1Yith respect to the subject of condominium conversions, the Florida legislature specifically provides
authority for a county to adopt ordinances or other measures for extending the time period of an expiring rental
agreement in the event of a condominium conversion. Section 718.606(6), Fla. Stat. (1993). No similar
provisions appear in Chapter 83 of the Florida Statutes allowing a local government to legislate additional time
extension provisions.
1700 CONVENTION CENTER DRIVE—FOURTH FLOOR—MIAMI BEACH,FLORIDA 33139
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DEPARTMENT OF LEGAL AFFAIRS
Attorney General Opinions
I. General Nature and Purpose of Opinions
Issuing legal opinions to governmental agencies has long been a
function of the Office of the Attorney General. Attorney General
Opinions serve to provide legal advice on questions of statutory
interpretation and can provide guidance to public bodies as an
alternative to costly litigation. Opinions of the Attorney
General, however, are not law. They are advisory only and are
not binding in a court of law. Attorney General Opinions are
intended to address only questions of law, not questions of fact,
mixed questions of fact and law, or questions of executive,
legislative or administrative policy.
Attorney General Opinions are not a substitute for the advice
and counsel of the attorneys who represent governmental agencies
and officials on a day to day basis. They should not be sought
to arbitrate a political dispute between agencies or between
factions within an agency or merely to buttress the opinions of
an agency's own legal counsel. Nor should an opinion be sought
as a weapon by only one side in a dispute between agencies.
Particularly difficult or momentous questions of law should be
submitted to the courts for resolution by declaratory judgment.
When deemed appropriate, this office will recommend this course
of action. Similarly, there may be instances when securing a
declaratory statement under the Administrative Procedure Act will
be appropriate and will be recommended.
II. Types of Opinions Issued
There are several types of opinions issued by the Attorney
General 's Office. All legal opinions issued by this office,
whether formal or informal, are persuasive authority and not
binding.
Formal numbered opinions are signed by the Attorney General and
published in the Annual Report of the Attorney General. These
opinions address questions of law which are of statewide concern.
This office also issues a large body of informal opinions.
Generally these opinions address, questions of more limited
application. Informal opinions may be signed by the Attorney
General or by the drafting assistant attorney general. Those
signed by the Attorney General are generally issued to public
officials to whom the Attorney General is required to respond.
Informal opinions issued by the drafting attorney are issued in
memoranda form. While an official or agency may request that an
opinion be issued as a formal or informal, the determination of
the type of opinion issued rests with this office.
Exhibit B
J 1
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III. Persons to Whom Opinions May Be Issued
The responsibility of the Attorney General to provide legal
opinions is specified in s. 16.01(3) , F.S. That section
requires the Attorney General to render opinions to "the
Governor, a member of the Cabinet, the head of a department
in the executive branch of state government, the Speaker of
the House of Representatives, the President of the Senate, the
Minority Leader of the House of Representatives, or the Minority
Leader of the Senate . . "
The Attorney General may also issue opinions to "a member of
the Legislature, other state officer, or officer of a county,
municipality, other unit of local government, or political
subdivision. " In addition, the Attorney General is authorized
to provide legal advice to the state attorneys and to the
representatives in Congress from this state. Sections 16.08
and 16.52(1) , F.S.
Questions relating to the powers and duties of a public board
or commission (or other collegial public body) must be requested
by a majority of the members of that body. A request from a
board must, therefore, clearly indicate that the opinion is being
sought by a majority of its members and not merely by a
dissenting member or faction.
IV. When Opinions Will Not Be Issued
Section 16.01(3) , F.S. , does not authorize the Attorney General
to render opinions to private individuals or entities, whether
their requests are submitted directly or through governmental
officials. In addition, an opinion request must relate to the
requesting officer's own official duties. An Attorney General
Opinion will not, therefore, be issued when the requesting party
is not among the officers specified in s. 16.01(3) , F.S. , or when
an officer falling within s. 16.01(3) ,_ F.S. , asks a question not
relating to his or her own official duties.
In order not to intrude upon the constitutional prerogative of
the judicial branch, opinions are not rendered on questions
pending before the courts or on questions requiring a determina-
tion of the constitutionality of an existing statute or
ordinance.
Opinions are not issued on questions requiring an interpretation
only of local codes, ordinances or charters rather than the
provisions of state law. Such requests will be referred to the
attorney for the local government in question. In. addition, when
an opinion request is received on a question falling within
statutory jurisdiction of some other state agency, the request
will either be transferred to that agency or the requesting party
will be advised to contact the other agency. For example,
questions concerning the Code of Ethics for Public. Officers and
Employees are answered by the Florida Commission on Ethics;
•
•
•
questions arising under the Florida Election Code should be
directed to the Division of Elections in the Department of State.
Other circumstances in which the Attorney General may decline to
issue an opinion include:
questions of a speculative nature;
questions requiring factual determinations;
questions which cannot be resolved due to an
irreconcilable conflict in the laws although the
Attorney General may attempt to provide general.
assistance;
questions of executive, legislative or administrative
policy;
matters involving intergovernmental disputes unless all
governmental agencies concerned have joined in the request;
moot questions;
questions involving an interpretation only of local
codes,, charters, ordinances or regulations; or
where the official or agency has already acted and seeks to
justify the action.
V. Form In Which Request Should. Be Submitted .
Requests for opinions must be in writing and should be addressed
to:
Bob Butterworth
Attorney General
Department of Legal Affairs
The Capitol
Tallahassee, Florida 32399-1050
The request should clearly and concisely state the question of
law to be answered. The question should be limited to the
actual matter at issue. Sufficient elaboration should be
provided so that it is not necessary to infer any aspect of the
question or the situation on which it is based. If the question
is predicated on a particular set of facts or circumstances,
these should be fully set out.
The response time for requests for Attorney General Opinions has
been substantially reduced. This office attempts to respond to
all requests for opinions within 30 days of their receipt in this
office. However, in order to facilitate this expedited response
to opinion requests, this office requires that the attorneys
for public entities requesting an opinion supply this office with
4
a memorandum of law to accompany the request. The memorandum
should include the opinion of the requesting party's own legal
counsel, a discussion of the legal issues involved, together with
references to relevant constitutional provisions, statutes,
charter, administrative rules, judicial decisions, etc.
Input from other public officials, organizations or associations
representing public officials may be requested. Interested
parties may also submit a memorandum of law and other written
material or statements for consideration. Any such material will
be attached to and made a part of the permanent file of the
opinion request to which it relates.
VI. Miscellaneous
Persons wishing to obtain a copy of a previously issued opinion
should contact the Records Room of the Attorney General's Office.
As an alternative to requesting an opinion, officials may wish
to use the informational pamphlet prepared by this office on
dual officeholding. A copy of this pamphlet can be obtained by
contacting the Opinions Section of the Attorney General's Office.
In addition, .the Attorney General, in cooperation with the First
Amendment Foundation, has prepared the Government in the Sunshine
Manual which explains the law under which Florida ensures public
access to the meetings and records of state and local government.
Copies of this manual can be obtained through the First Amendment
Foundation.
a0. C fi .• rJ p v4b�
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a
F aigg3 ATTORNEY GENERAL Ch. 16
•
odds as the ' • CHAPTER 16
lrydState .
Jant to the - ATTORNEY GENERAL •
.the Se l. 'z' 1tp1 Residence,office,and duties of Attorney Gen- (7) Shall make and keep in his office a record of all
xity to; , , eral. his official acts and proceedings, containing copies of
iin9 to the i. 18.015 Legal services; Department of Legal Affairs, all of his official opinions,reports,and correspondence,
?•'s cutturaf other counsel. and also keep and preserve in his office all official letters
161)16 Payment of per diem, mileage, and other and communications to him and cause a registry and i
d to cauati expense. index thereof to be made and kept, all of which official '
grams and 1b-02 Appointment of person to act in case of disabil- papers and records shall be subject to the inspection of
ity of Attorney General. the Governor of the state and to the disposition of the
31 aciivitlea' , t6.05 Report on laws. • Legislature by act or resolution thereof.
dignita►by 16.061 Initiative petitions. (8) May periodically publish a report of his official
16.07 Fee for defending offender prohibited. opinions and may prepare and publish an index or corn
Pubic • • tele Superintendence and direction of state actor- solidated index or indexes of opinions.
rt3 to pro. T Heys. team 2,ch.2.1845.ch.1645,1671.Rs 6s.GS 67;RGS 101:CGL 125.a
7,ch 22656.1945,s.7,0.59-1•a.1,ch.78-339;s.1,di.79-193;a.7,a 61-259
Hsu - ' .i • tug Regulations as to the reports of state attorneys. a.I.a,
•,Y .to Receipt of Supreme Court reports for office.
A this 16101 Supreme Court reporter. 16.015 Legal services; Department of Legal j
t � Participation in preserving constitutional integ Affairs, other counsel.—The Department of Legal ,
rity of state. Affairs shall be responsible for providing all legal ser• s
res for' • 16.53 Legal Affairs Revolving Trust Fund. vices required by any department,unless otherwise pro- 1
Dec
'' 16535 Legal Services Trust Fund. vided by law.However,the Attorney General may autho- j
l other counsel when profes
16.54 Florida Crime Prevention Training Institute; rize other counsel where emergency circumstances
revolving trust fund. exist and shall authorize
. 1656 Crime prevention training. sional conflict of interest is present. Each board, tow-
3 16555 Crime Stoppers Trust Fund; rulemaking. ever designated, of which the Attorney General is a i
;�® „ - 1656 Office of Statewide Prosecution. member may retain legal services in lieu of those pro- '
vided by the Attorney General and the Department of {
lilies .1 mg Office of Civil Rights.
Legal Affairs.
basis , 16.58 Florida Legal Resource Center. Ma,�-s.1, a1 e3-106;a 2 a1 77-105
al •
.. •
,ditur• 116.01 Residence, office, and duties of Attorney 16.016 Payment of per diem, mileage, and other
j ,• General.—The Attorney General: expense.—Whenever the Department of Legal Affairs
e , • (1) Shall reside at the seat of government and shall is called upon to represent any administrative agency or
1.' keep his office in the Capitol. regulatory board,the agency or regulatory board so rep
•
at• (2) Shall perform the duties prescribed by the Con- resented shall pay the per diem,mileage,and other rea- •
.. gttuion of this state and also perform such other duties sonabie expense of the representative of such depart- •
• appropriate to his office as may from time to time be ment.
etary. l required of him by law or by resolution of the Legislature. —�' e^ 11• •ci %.106 .s,a1.79 35.
l ..• ' Noss—corm.a.455.07.
ntal x;:• (3) Notwithstanding any other provision of law,shall,
•- -` on the written requisition of the Governor,a member of 16.02
. 1.. Ihs Cabinet,the head of a department in the executive Appointment General—In of person caseo act the case of dlsf
-• ability of Attorney of disability of
• ' branch.of state government,the Sneaker of the House the Attorneyperform any
official duty:'"•• ---"`j al Representatives, the President of the Senate, the ing on him,by reasonr ofo interest otherwise,the Gover-
• k• - Mnarity Leader of the House of Representatives,or the p nor or Attorney General of this state may appoint
1 •• • . • J.•-4 ll/nority Leader of the Senate,and may,upon the written another person to perform such duty in his stead. •
requisition of a member of the Legislature, other state r s 3.a1.2.1845.Rs ass;GSM:RGs 102 CGL 126. "�
officer,or officer of a county,municipality,other unit of
suanl • local government,or political subdivision,give his official 16.06 Report on laws.—The Attorney General shall
Opinion andadvice in writingon anymake a written report .•
i tend: - legal question of law to the Governor 5 days before the
.t.:-...,. *stig to the official duties of the requesting officer. first day of every session of the Legislature, as to the
•etas) . ;.._(4) Shall appear in and attend to, in behalf of the effect and operation of the acts of the last previous ses-
`x ',ekitle, all suits or prosecutions, civil or criminal or in sion the decisions of the courts thereon,and referring
f etity,in which the state may be a party,or in anywise to the previous legislation on the subject,with such sug-
'ar' 'f 'bterested,in the Supreme Court and district courts of gestions as in his opinion the public interest may
'
• a1 of this state. demand, which report shall be laid before the Legisla •
-
10 - :•':i.r(5) Shall ture by the Governor with his first message. •
at appear in and attend to such suits or prose- 39
i a., - ' al6ons in any other of the courts of this state or in any a.s.a,.z.tss;Rs ee;Gs 91:RGS lass ccL 1
001sts of any other state or of the United States. 16.061 Initiative petitions.—
' 11) Shall have and perform all powers and duties (1) The Attorney General shall,within 30 days atter
`-.s•- •• t or usual to such office. receipt of a proposed revision or amendment to the
203
Exhibit C ;