When does a tenant-commissioner on a Florida housing authority lose their seat for falling behind on rent?

Plain-English summary

Florida housing authorities must include at least one commissioner who is a resident of a housing project and current in rent, or a low-income resident receiving a rent subsidy. The Housing Authority of the City of Miami Beach had issued a notice of termination to its tenant-commissioner after concluding that the commissioner had failed to report income and owed past-due rent. The authority's counsel asked exactly when that commissioner's qualification ends: on the date the notice of termination is issued, or on the last date the commissioner actually receives the rental subsidy?

Attorney General Bill McCollum concluded that the trigger is the loss of the qualification itself. Under section 421.05(1), Florida Statutes, once a tenant-commissioner is no longer "current in rent," that person is no longer qualified to serve and a vacancy in office occurs. A replacement meeting the statutory qualifications must then be appointed for the unexpired portion of the term. The AG noted that a notice of termination based on a demand for past rent due and owing would appear to make the tenant-commissioner no longer current in rent.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What made someone qualified to be a tenant-commissioner under the statute?
A: Section 421.05(1) required each housing authority to have at least one commissioner who was either a resident current in rent in a housing project, or a low- or very-low-income person living within the authority's jurisdiction and receiving rent subsidy through the authority. The AG read these as alternative, disjunctive qualifications, so a commissioner did not have to satisfy both.

Q: At what point did the AG say the seat became vacant?
A: When the commissioner stopped meeting the qualification. The statute provided that cessation of the tenant-commissioner's tenancy or cessation of the rent subsidy removes the commissioner from office. So the moment the commissioner was no longer current in rent, the office was vacant; the office did not wait for a later subsidy end-date.

Q: How long did the authority have to fill the vacancy?
A: The opinion explained that commissioners serve a four-year term and that a vacancy is filled for the unexpired term by appointment by the mayor with the approval of the governing body, to be done within 60 days after the vacancy occurs.

Background and statutory framework

Florida's Housing Authorities Law, Part I of Chapter 421, Florida Statutes, lets a municipality create a housing authority when its governing body adopts a resolution declaring a need, based on findings about unsafe or insanitary dwellings or a shortage of affordable, safe housing (s. 421.04(2)). The board has between five and seven commissioners appointed by the mayor with the governing body's approval (s. 421.04(1)).

The qualification provision at the center of this opinion, s. 421.05(1), serves two functions. It requires at least one resident or subsidy-receiving commissioner, and it spells out when that commissioner is removed: "[t]he cessation of a tenant-commissioner's tenancy in a housing project or the cessation of rent subsidy shall remove such tenant-commissioner from office, and another person meeting the qualifications required for the office shall be appointed for the unexpired portion of the term." The AG treated "current in rent" as an ongoing qualification, so falling behind on rent ends the qualification and opens the seat. The opinion cited AGO 85-63 for the settled reading that "or" is ordinarily a disjunctive particle, supporting the conclusion that the two qualification paths are alternatives.

Citations and references

Statutes:

• s. 421.05(1), Fla. Stat. (tenant-commissioner qualification and removal)
• s. 421.03(3), Fla. Stat. (definition of governing body)
• s. 421.04(1), Fla. Stat. (creation and board of a housing authority)
• s. 421.04(2), Fla. Stat. (findings supporting need for an authority)

Opinions:

• Op. Att'y Gen. Fla. 85-63 (1985) ("or" as a disjunctive particle)

Subject

Housing Authority, when vacancy occurs

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/housing-authority-when-vacancy-occurs-
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1720

Original opinion text

Ms. Eve A. Boutsis

Figueredo, Boutsis & Montalvo, P.A.

18001 Old Cutler Road, Suite 533

Miami, Florida 33157-6416

RE: HOUSING AUTHORITIES – RESIDENTS – COMMISSIONERS – TENANTS – whether tenant-commissioner of housing authority who is not current in rent creates a vacancy in office. s. 421.05, Fla. Stat.

Dear Ms. Boutsis:

As general counsel to the Housing Authority of the City of Miami Beach (HACMB), you have asked for my opinion on substantially the following question:

Whether qualification for the position of tenant commissioner for the Housing Authority of the City of Miami Beach terminates upon the issuance of the notice of termination prescribed in section 421.05(1), Florida Statutes, or whether termination occurs upon the last date that the commissioner receives a rental subsidy?

In sum:

Pursuant to section 421.05(1), Florida Statutes, a vacancy in office is created when a tenant-commissioner is no longer "current in rent" and a replacement for that officer must be appointed for the unexpired portion of the term.

According to your letter, on December 3, 2009, the Housing Authority of the City of Miami Beach issued a "notice of termination" to its current tenant commissioner. The tenant commissioner was receiving rental subsidy through the housing authority. The cause for the issuance of the notice of termination was the alleged failure to report income. You suggest that the demand for past due rent appears to make the commissioner a resident that is not current in paying rent as required by section 421.05, Florida Statutes. The notice of termination indicated that the recipient will stop receiving benefits on February 1, 2010, and provides the amount due to the agency based on unreported income.

Florida's Housing Authorities Law, Part I of Chapter 421, Florida Statutes, provides for the creation of housing authorities by municipalities.[1] A housing authority may be created if the governing body of a city, by proper resolution, declares that there is a need for such an authority.[2] As required by statute, the governing body may adopt a resolution declaring that there is a need for a housing authority in the city if it finds that:

"(a) Insanitary or unsafe inhabited dwelling accommodations exist in such city; or

(b) There is a shortage of safe or sanitary dwelling accommodations in such city available to persons of low income at rentals they can afford. In determining whether dwelling accommodations are unsafe or insanitary said governing body may take into consideration the degree of overcrowding, the percentage of land coverage, the light, air, space and access available to the inhabitants of such dwelling accommodations, the size and arrangement of the rooms, the sanitary facilities, and the extent to which conditions exist in such buildings which endanger life or property by fire or other causes."[3]

Following adoption of a resolution declaring the need for creation of a housing authority, a board of commissioners shall be appointed. The board must consist of between five and seven persons who are appointed by the mayor with the approval of the municipal governing body.[4] Commissioners serve a four-year term of office and any vacancy is to be filled for the unexpired term by an appointment by the mayor with the approval of the governing body within 60 days after that vacancy occurs.

Section 421.05(1), Florida Statutes, requires that

"Each housing authority created pursuant to this chapter shall have at least one commissioner who shall be a resident who is current in rent in a housing project or a person of low or very low income who resides within the housing authority's jurisdiction and is receiving rent subsidy through a program administered by the authority or public housing agency that has jurisdiction for the same locality served by the housing authority, which commissioner shall be appointed at the time a vacancy exists."

Thus, the statute requires that each housing authority include a commissioner who is a resident in a housing project and is current in his or her rent or a commissioner who is a low income resident within the housing authority's jurisdiction. This commissioner need not satisfy both sets of criteria as these requirements are expressed in the disjunctive.[5] The dual nature of these qualifications is also expressed in the provision for termination of a commissioner's office: "[t]he cessation of a tenant-commissioner's tenancy in a housing project or the cessation of rent subsidy shall remove such tenant-commissioner from office, and another person meeting the qualifications required for the office shall be appointed for the unexpired portion of the term." (e.s.)

The statute provides that, as a qualification for service as a tenant-commissioner on the housing authority, the commissioner be "current in rent." At such time as the resident commissioner is no longer current in his or her rent payments, that commissioner is no longer qualified to serve and a vacancy in office occurs. The statute appears to reflect a broader recognition that a commissioner's tenancy may be terminated for any number of reasons, including non-payment of rent, and resulting in a vacancy in office.

In sum, it is my opinion that, pursuant to section 421.05(1), Florida Statutes, a vacancy in office is created when a tenant-commissioner is no longer "current in rent" and a replacement for that officer must be appointed for the unexpired portion of the term. A notice of termination predicated on a demand for past rent due and owing to the Housing Authority of the City of Miami Beach would appear to make the tenant-commissioner no longer "current in rent" and a vacancy in that office occurs.

Sincerely,

Bill McCollum

Attorney General

BM/tgh

[1] See s. 421.03(3), Fla. Stat., providing that a "[g]overning body" is "the city council, the commission, or other legislative body charged with governing the city," and s. 421.04(1), Fla. Stat.

[2] Section 421.04(1), Fla. Stat.

[3] Section 421.04(2), Fla. Stat.

[4] Section 421.05(1), Fla. Stat.

[5] See Op. Att'y Gen. Fla. 85-63 (1985) (word "or" ordinarily, and in ordinary use and in its accurate primary and natural meaning, is a disjunctive particle).