R5A-Amend Chapter 38 ElectionsOFFICE OF THE CITY ATIORNEY
JOSE SMITH, CITY ATIORNEY
COMMISSION MEMORANDUM
TO: Mayor Matti Herrera Bower
Members of the City Commission
CC: Jimmy Morales, City Manager
FROM: Jose Smith, City Attorney
Rafael E. Granado, City 'er
DATE: July 17, 2013
SECOND READING
PUBLIC HEARING
SUBJECT: PROPOSED HOUSEKEEPING AMENDMENTS TO CITY CODE CHAPTER 38
"ELECTIONS"
In addition to those provisions of the City Charter relating to City elections, 1 there are
City Ordinances codified in Chapter 38 of the City Code dealing with the process of conducting
City elections. The majority of the provisions in Chapter 38 were originally enacted in 1964. In
order to ensure compliance with applicable statutory and County Code provisions, periodic
review of these Code provisions is required. Accordingly, the City Attorney's Office has
reviewed and analyzed Chapter 38, resulting in the attached Ordinance containing the following
City Code amendments presented as a housekeeping matter:
I. Amendments required by Florida law due to statutory preemption
Prior to the 2011 statutory amendments to the State's Early Voting Law (Section
101.657, Fla. Stat.), municipalities had the power to opt out of the State's law and could thus
self-regulate Early Voting for its elections. This ability to opt out was exercised by the City
Commission in 2005, resulting in the adoption of City Code section 38-6 which provides, in part,
for a total of 7 days of Early Voting preceding every General Election.
However, last year, the State Legislature amended Section 101.657 by preempting a
municipality's ability to completely opt out of the State's law. Municipalities must now adhere to
the statutory Early Voting schedule for those City elections held in conjunction with County or
State elections. However, for those City elections not held in conjunction with County or State
elections, cities such as Miami Beach may opt out of the statutory provisions and thus may
regulate the number of days and sites for Early Voting.
Accordingly, the City Code amendments proposed herein establish the City's policy
decision to self-regulate its Early Voting for City elections not held in conjunction with County or
1 See Miami Beach Charter, Articles VI "Elections" and VII "Initiative and Referendum."
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Date 1-ll-13
State elections. The amendments propose a 14-day Early Voting period 2 with Early Voting sites
at City Hall and the North Shore Branch Library.
II. Amendments required due to County Elections Department Process
In order to reflect the County Elections Department's procedure regarding the timing of
its issuance of Final Election Returns, the proposed City Code amendments include changing
the date on which the City Commission accepts/canvasses election returns from the day after
the election date to the first business day immediately following the County Supervisor of
Election's issuance of Final Election Returns.
Ill. Miscellaneous Amendments
Although not mandated by State or County law, the City Attorney further recommends as
a housekeeping matter that the City Code amendments include language:
• Confirming the City Commission's power to take emergency action at any Commission
meeting occurring between a General election date and the date on which it accepts
final Run-Off election returns; and
• Including specific statutory citations to applicable provisions of the Florida Election Code,
as well as corrections to non-substantive typographical errors; and
• Creating City Code section 38-7, entitled "Petitions," for the purpose of ensuring ballot
integrity with regard to initiative, referendum, and recall petitions filed under Article VII of
the City Charter or Florida law. Signers of such Petitions shall be required to provide
their address, date of birth or voter registration number, and date of signature to conform
to current petition requirements. Petition Circulators shall also provide a statement
confirming that they personally witnessed each signature.
IV. Proposed Amendments to Apply Prospectively After Adoption
At the request of Commissioner Ed Tobin, the City Attorney has researched and
responds to the issue of retroactivity of the amendments proposed herein. In the absence of
clear legislative intent to make the law retroactive, a law affecting substantive rights is presumed
to apply prospectively only, while procedural or remedial statutes are presumed to operate
retrospectively. See Young v. Altenhaus, 472 So.2d 1152 (Fla. 1985), Memorial Hospital-West
Volusia, Inc. v. News-Journal Corp., 784 So.2d 438 (Fla. 2001), and Metropolitan Dade County
v. Chase Federal Housing Corp., 737 So.2d 494 (Fla. 1999). Moreover, even if legislation
clearly expressed an intent that it apply retroactively, the retroactive application will not be
constitutionally permissible if it impairs vested rights, creates new obligations, or imposes new
penalties. See State Farm Mutual Auto. Insurance Co. v. Laforet, 658 So.2d 55, 61 (Fla. 1995).
Here, there is no legislative expression of retroactive intent. Even if such intent was expressed,
the amendments would arguably not apply retroactively to an initiative petition which utilized the
existing forms provided by the City Clerk, was already circulated, and has already been verified
by the County Supervisor of Elections. Principles of equitable estoppel and the potential
application of new obligations, expenses, and time constraints which would place burdens on
2 Per Section 101.657, Fla. Stat., the County Supervisor has the discretion to regulate the hours
of Early Voting in the event the County conducts Early Voting.
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the ability to have the item placed on the November ballot would support the prospective
application of the proposed amendments.
V. Economic Impact Analysis
Pursuant to City Charter Section 5.02, the City is required to consider the long-term
economic impact (at least 5 years) of proposed legislative actions. The predominant economic
impact of the proposed Ordinance concerns the proposed increase in the number of Early
Voting days for City stand-alone elections (not held in conjunction with County or State
elections) from 7 to 14, with a daily Early Voting cost of $6,400 {$3,200/day x 2 sites =
$6,400/day) and an increased annual cost to the City of $44,800 ($6,400/day x 7 days =
$44,800/per election). Therefore, assuming one City stand-alone election per year, the
projected economic impact of this Ordinance over a period of 5 years is $224,000
($44,800 x 5 years= $224,000).3
F•\ATI'O\TUIC'I\COMMMEMO\Chapter
3 See Estimates from the Miami-Dade Elections Department attached as the Composite Exhibit
hereto.
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ORDINANCE NO.------
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, AMENDING MIAMI BEACH CITY
CODE CHAPTER 38 ENTITLED "ELECTIONS," BY INCLUDING
REFERENCE TO APPLICABLE STATUTORY PROVISIONS OF
FLORIDA ELECTION CODE; CORRECTING TYPOGRAPHICAL
ERRORS; AMENDING CITY CODE SECTION 38-4 TO PROVIDE FOR
COMMISSION CANVASSING OF ELECTION RETURNS ON THE
FIRST BUSINESS DAY IMMEDIATELY FOLLOWING THE COUNTY
SUPERVISOR OF ELECTION'S ISSUANCE OF FINAL ELECTION
RETURNS AND CONFIRMING AUTHORIZATION OF EMERGENCY
COMMISSION ACTION TAKEN AT ANY COMMISSION MEETING
OCCURRING BETWEEN GENERAL ELECTION DATE AND
ACCEPTANCE OF FINAL RUN-OFF ELECTION RETURNS;
AMENDING CITY CODE SECTION 38-6 BY ESTABLISHING THE
NUMBER OF DAYS FOR EARLY VOTING RELATIVE TO CITY
GENERAL, RUN-OFF AND SPECIAL ELECTIONS UPON CITY
COMMISSION AUTHORIZATION OF EARLY VOTING, AND
AUTHORIZING CITY COMMISSION TO CHANGE EARLY VOTING
SCHEDULE FOR ELECTIONS NOT HELD IN CONJUNCTION WITH
COUNTY OR STATE ELECTIONS; AND CREATING CITY CODE
SECTION 38-7 ENTITLED "PETITIONS" ESTABLISHING
INFORMATION TO BE PROVIDED BY PETITION CIRCULATORS AND
PERSONS SIGNING INITIATIVE, REFERENDUM AND/OR RECALL
PETITIONS; PROVIDING FOR REPEALER, SEVERABILITY,
CODIFICATION, AND AN EFFECTIVE DATE.
NOW, THEREFORE, BE IT DULY ORDAINED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA AS FOLLOWS:
SECTION 1. That Chapter 38 of the Miami Beach City Code entitled "Elections" is hereby
amended as follows:
Chapter 38
ELECTIONS.1
1 Charter references-Elections, Art. VI; Initiative and Referendum Elections, Art. VII.
Cross references-Any ordinance calling elections or prescribing the manner of conducting
the election in accordance with State law saved from repeal, §1-10(a)(16); Administration,
Ch. 2; City Commission,§ 2-31 et seq.; election signs,§ 138-134.
State Law reference-Florida Election Code, Fla. Stat. Chs. 97-106.
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Sec. 38-1. State law adopted.
Subject to provisions of Florida Statute §1 00.3605, AU general laws of the s§tate relating to
elections which are not inconsistent or in conflict with the provisions of the Charter or this
chapter are hereby adopted as part of this chapter.
Sec. 38-2. City Commission to perform duties of County Board of Commissioners.
Subject to provisions of Florida Statute §100.3605, +!he GCity GCommission shall perform all
acts in relation to general GCity elections which, by the s§tate law, are made the duty of the
b§.oard of GCounty GCommissioners.
Sec. 38-3. Resolution by City Commission setting forth date and purpose of election,
deadline for registration, polling places, change of polling places.
(a) For the purpose of making proper provision for each municipal election held in the GCity, the
GCity GCommission shall, not less than 30 days prior to the proposed date of such election,
adopt a resolution setting forth the following:
(1) The date upon which such election is to be held.
(2) The purpose of such election.
(3) The days and hours, prior to the date of such election during which persons qualified
to vote therein may register for the election.
(4) The list of polling places in the several precincts provided for by resolution.
(5) The form of ballot to be used in such elections, prepared in compliance with all
statutory requirements relating to the use of mechanical or other approved voting
machines or devices.
(b) The GCity GCommission shall further authorize and direct the GCity GCierk to give notice of
the adoption of such resolution and of the provisions thereof prescribed in subsection (a), by
and through the publication of an appropriate advertisement in a newspaper meeting the
requirements set forth in -F-,.S. Florida Statute §50.031 once a week for four consecutive weeks
next preceding the day upon which such municipal election is to be held. If any polling place
designated in such resolution shall become unavailable for use as such, the GCounty
s§upervisor of e£1ections shall designate another polling place in the manner provided by
s§tate law.
Sec. 38-4. Canvass of Returns; Installation of New Officers.
On the first business day immediately following the County Elections Supervisor's issuance of
final election results. t+he GCity GCommission shall meet on the first 'Nednesday after a general
election or as soon thereafter as practicable, and in the event a n.moff election is necessary the
c.Q.ity cCommission shall meet on the day after the runoff election, for the purpose of canvassing
the returns of such election(s) and ascertaining the results thereof. Should no fRun-eOff
e£1ection be necessary, new officers shall be declared elected subsequent to canvass of final
General e£1ection returns on the first Wednesday after the general election (or as soon
thereafter as practicable), at which time the new officers shall be installed and shall enter upon
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the discharge of their duties; if a fRun-eOff e£,1ection is necessary, all new officers shall be
declared elected subsequent to canvass of final fRun-eOff e£,1ection returns on the first
business day after the runoff election immediately following the County Elections Supervisor's
issuance of such final election results, at which time the new officers shall be installed and shall
enter upon the discharge of their duties. Moreover, if a fRun-eOff e£,1ection is necessary, the
sCommission meetingf§l occurring on the first VVednesday after the general election between
the date of General Election and the Commission's acceptance of final Run-Off Election returns
shall occur for the limited purpose of canvassing the returns of such general election, and/or to
address any emergency matter, pursuant to Florida Statute §952.38 (as amended from time to
time) and City Charter §2.05.
Sec. 38-5. Appointment and Duties of City Clerk in Connection with Elections.
The sCity sCierk is nominated and appointed as the responsible official of the sCity and is
hereby empowered, authorized and directed to perform all duties and functions and to exercise
all powers of the s§.upervisor of registration or e£,1ections required to be performed under this
Code, the sCity Charter, the sCounty Charter or Code and the laws and constitution of the
s§.tate in connection with municipal elections; however, whenever any act or duty with respect
to an election has been, or may be, performed by the s§.upervisor of e£,1ections of the sCounty,
it shall not be necessary for the sCity sCierk to duplicate that act, but the sCierk may rely upon
the actions of the s§.upervisor of e£,1ections of the sCounty.
Sec. 38-6. Early voting.
fat Pursuant to F. S. § 1 00.3605(1 ), it is hereby provided that commencing with the November
2005 municipal elections for mayoral and commission offices, all City of Miami Beach general,
runoff and special elections are hereby exempted from the provisions of F. S. § 1 01.657(1 )(d)
(the "Early Voting Statute"). The early voting statute provides for early voting to begin on the
15th day before an election and end on the second day before an election and provides other
operational restrictions.
(b) In lieu of the above described pro'lisions of F.S. § 101.657(1)(d), it is hereby provided that
early voting, if authorized by the city commission, shall commence at Miami Beach City Hall
eight days prior to the general election, and shall occur for a total of seven consecutive days;
with early voting to occur on the Saturday and Sunday immediately preceding any run off
election.
(a} Pursuant to Florida Statute §101.657{1)00 (e), (the "Early Voting Statute"), the City of Miami
Beach may provide for early voting in City elections that are not held in conjunction with County
or State elections. with the ability of the City to designate as many early voting sites as
necessary and to conduct its activities in accordance with the provisions of Florida Statute
§ 101.657 (1 )(a)-{ c).
(b) If authorized by the City Commission per subsection (a) above, early voting shall occur at
Miami Beach City Hall and the North Shore Branch Library in accordance with the following
schedule:
1. General Election; Early voting shall commence fitfteen days immediately preceding
the General Election for a total of fourteen consecutive days.
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2. Run-Off Election: Early voting shall occur on the Saturday and Sunday immediately
preceding any Run-Off Election.
(c) The hours of early voting shall be noticed in a newspaper(s) of general circulation within the
City of Miami Beach.
(d) The remaining paragraphs of ~-Florida Statute §1 01.657, exclusive of paragraph (1 )(d)
thereof, shall continue to apply to the GCity's §General, fRun-eOff and s§.pecial e.Siections as
provided by law.
(e) The GCity GCommission may, by resolution, adopted in advance of a §General, fRun-eOff or
s§.pecial es_lection that is not held in conjunction with a County or State election per subsection
(a) above, alter the site§. and/or schedule of days (and times. when early voting is either not
conducted by the County Supervisor of Elections, or when the Supervisor is conducting the
early voting but has not exercised the discretion to determine the early voting hours) for early
voting from that which is provided above.
(f) The GCity GCierk is hereby authorized to take any action not otherwise inconsistent with State
or County law, which is necessary or expedient to implement early voting in accordance with
this section.
Sec. 38-7. Petitions.
Each signer of an initiative, referendum or recall petition submitted pursuant to Article VII of the
City Charter or Florida law, shall place thereon, his or her name (both printed and signed), his or
her street address including City and State, his or her date of birth or voter registration number,
and the date on which he or she signed the petition. Each person circulating a cogy of the
petition shall attach to it a statement confirming that the circulator personally witnessed each
person whose signature appears on the petition personally sign the petition on each of the
respective dates set forth therein.
SECTION 2. REPEALER.
All ordinances or parts of ordinances in conflict herewith be and the same are hereby repealed.
SECTION 3. SEVERABILITY.
If any section, sentence, clause or phrase of this ordinance is held to be invalid or
unconstitutional by any court of competent jurisdiction, then said holding shall in no way affect
the validity of the remaining portions of this ordinance.
2 The Early Voting time period for any Special Election held in conjunction with a General or
Run-Off Election shall occur in accordance with the resgective time periods set forth above in
Code §38-6(b) 1 and 2.
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SECTION 4. CODIFICATION.
It is the intention of the Mayor and City Commission of the City of Miami Beach, and it is hereby
ordained that the provisions of this ordinance shall become and be made a part of the Code of
the City of Miami Beach, Florida. The sections of this ordinance may be renumbered or re-
lettered to accomplish such intention, and the word "ordinance" may be changed to "section,"
"article," or other appropriate word.
SECTION 5. EFFECTIVE DATE.
This Ordinance shall take effect the __ day of--------' 2013.
PASSED and ADOPTED this ___ day of ________ , 2013.
ATTEST:
MAYOR MA TTl HERRERA BOWER
RAFAEL E. GRANADO, CITY CLERK
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