Can one red-light-camera hearing officer serve multiple Florida cities or counties at the same time?

Subject

Local Hearing Officer -- Dual Office-Holding

Plain-English summary

The Winter Park city attorney asked whether one "local hearing officer," the person who hears challenges to red-light-camera traffic citations, could serve more than one city or county at the same time without violating Florida's ban on holding two offices at once. The AG concluded the answer is no.

The setup comes from a 2013 statute. Section 316.003(91) defines a local hearing officer and lets a charter county, noncharter county, or municipality "use its currently appointed code enforcement board or special magistrate" to hear red-light-camera cases under section 316.0083. The AG had already determined in a companion opinion (AGO 2013-18) that a red-light hearing officer is an "officer" for purposes of Article II, section 5(a), and that section 316.003(91) provides an ex officio exception letting a jurisdiction's existing code magistrate also act as its hearing officer.

But the AG read that exception narrowly. The statute says a local government may use "its" own current magistrate, and the AG stressed the possessive: nothing in the text extends the exemption to let a magistrate appointed by one jurisdiction serve as the hearing officer for other jurisdictions. The legislative history pointed the same way, describing the convenience of a local government using its own already-appointed magistrate. Two interpretive rules sealed it: mentioning one thing implies excluding others (expressio unius), and exceptions to a constitutional prohibition are strictly construed against anyone trying to expand them. So the ex officio exemption covers only the jurisdiction the officer already serves; doubling up across jurisdictions would violate Article II, section 5(a).

Currency note

This opinion was issued in 2013. 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

Can a red-light-camera hearing officer serve several cities at once?
According to this opinion, no. The ex officio exemption in section 316.003(91) lets an officer serve only the jurisdiction whose code enforcement board or special magistrate he or she already is. Serving other jurisdictions would violate the dual office-holding ban.

Why is a hearing officer treated as an "officer"?
The AG had concluded in AGO 2013-18 that hearing red-light-camera citations is an exercise of governmental authority that makes the role an office under Article II, section 5(a).

Why read the exemption so narrowly?
Because exceptions to the constitutional dual office-holding prohibition are strictly construed, and the statute's word "its" ties the exemption to the local government's own current magistrate, not to outside jurisdictions.

Could the law be changed to allow multi-jurisdiction service?
The opinion interprets the statute as written. Any broadening would be up to the Legislature; the AG noted the statute also lets a state department enter an interlocal agreement to use a county or municipal hearing officer.

Background and statutory framework

Section 316.003(91), added by Chapter 2013-160, Laws of Florida, defines a "local hearing officer" for red-light-camera cases under section 316.0083 and permits a local government to use its currently appointed code enforcement board or special magistrate in that role. Article II, section 5(a) of the Florida Constitution bars holding more than one office in state, county, and municipal government simultaneously.

The AG applied the plain-meaning rule from Fine v. Moran and Holly v. Auld, the expressio unius canon from Dobbs v. Sea Isle Hotel, and the strict-construction-of-exceptions rule from Samara Development Corporation v. Marlow to limit the ex officio exemption to the officer's home jurisdiction.

Citations

• section 316.003(91), Florida Statutes
• Art. II, s. 5(a), Fla. Const.
• section 316.0083, Florida Statutes
• Chapter 2013-160, Laws of Florida
• Fine v. Moran, 77 So. 533, 536 (Fla. 1917)
• Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984)
• Dobbs v. Sea Isle Hotel, 56 So. 2d 341 (Fla. 1952)
• Samara Development Corporation v. Marlow, 556 So. 2d 1097 (Fla. 1990)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/local-hearing-officer-dual-office-holding
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1566

Original opinion text

Mr. Usher L. Brown

Brown, Garganese, Weiss & D'Agresta, P.A.

Post Office Box 2873

Orlando, Florida 32802-2873

RE: LOCAL HEARING OFFICER – DUAL OFFICE-HOLDING – whether a local hearing officer may simultaneously serve as a red light traffic camera hearing officer for multiple jurisdictions. s. 316.003(91), Fla. Stat.; Art. II, s. 5(a), Fla. Const.

Dear Mr. Brown:

As City Attorney for the City of Winter Park, Florida, you have asked for my opinion on substantially the following question:

Can a "local hearing officer," as defined in section 316.003(91), Florida Statutes, be employed to provide service on behalf of more than one municipality or county without a violation of the prohibition against dual office-holding?

In sum:

The exemption for ex officio service as a local hearing officer for a local government pursuant to section 316.003(91), Florida Statutes, must be read strictly and extends only to service in that capacity for the local government for which the local hearing officer currently acts as a code enforcement board or special magistrate. The exception does not extend to service as a local hearing officer for other local governmental jurisdictions and such simultaneous service would violate the prohibition contained in Article II, section 5(a), Florida Constitution.

You are aware of Attorney General Opinion 2013-18 which concludes that service as a red light traffic infraction hearing officer is an "office" for purposes of Article II, section 5(a), Florida Constitution, the dual office-holding prohibition. That opinion also states that "[t]he language of section 316.003(91), Florida Statutes, appears to provide an ex officio exception to the constitutional dual office-holding prohibition for currently appointed code enforcement boards or special magistrates for charter county, noncharter county, or municipal code enforcement boards to also act as 'local hearing officers' for purposes of conducting hearings related to violations of section 316.0083, Florida Statutes." You ask whether, in light of the ex officio exception, a local hearing officer as defined in section 316.003(91), Florida Statutes, may serve in that capacity for multiple jurisdictions without violating the constitutional dual office-holding prohibition. For the following reasons, I conclude that they may not.

Section 316.003(91), Florida Statutes, as added by Chapter 2013-160, Laws of Florida, provides the Legislature's definition of a "local hearing officer:"

"LOCAL HEARING OFFICER.–The person, designated by a department, county, or municipality that elects to authorize traffic infraction enforcement officers to issue traffic citations under s. 316.0083(1)(a), who is authorized to conduct hearings related to a notice of violation issued pursuant to 316.0083. The charter county, noncharter county, or municipality may use its currently appointed code enforcement board or special magistrate to serve as the local hearing officer. The department may enter into an interlocal agreement to use the local hearing officer of a county or municipality." (e.s.)

The statute provides that the local government may use its[1] own currently appointed magistrate to serve as the local hearing officer. Nothing in the statute extends the exemption to allow a local hearing officer currently appointed as the code enforcement board or special magistrate for a jurisdiction to serve for other municipalities or counties outside the jurisdiction which has appointed him or her. The language of the statute is clear.[2]

Legislative history surrounding the enactment of the language in section 316.003(91), Florida Statutes, supports this reading. The House of Representatives Final Bill Analysis of CS/CS/HB 7125 which brought this language into the statute states, in explaining the effect of the changes resulting from the bill, that "[t]o facilitate the hearings, local governments may use their currently appointed code enforcement board or special magistrate to serve as the local hearing officer."[3] Further, in the fiscal comments on the bill, the legislative analysis states that "[t]he local government that has issued the notice of violation may use its currently appointed code enforcement board or special magistrate to serve as the local hearing officer for purposes of conducting the hearing."[4]

It is a well-recognized principle of statutory construction that the mention of one thing implies the exclusion of another – expressio unius est exclusio alterius. Thus, when a statute enumerates the things upon which it is to operate, or forbids certain things, it is ordinarily to be construed as excluding from its operation all things not expressly mentioned.[5]

Finally, provisos and exceptions in statutes are to be narrowly and strictly construed.[6] Thus, as an exception to the constitutional dual office-holding prohibition, the language in section 316.003(91), Florida Statutes, must be read narrowly and strictly construed to preclude its extension.

In sum, it is my opinion that the exemption for ex officio service as a local hearing officer for a local government pursuant to section 316.003(91), Florida Statutes, must be read strictly and extends only to service in that capacity for the local government for which the local hearing officer currently acts as a code enforcement board or special magistrate. The exception does not extend to service as a local hearing officer for other local governmental jurisdictions and such simultaneous service would violate the prohibition contained in Article II, section 5(a), Florida Constitution.

Sincerely,

Pam Bondi

Attorney General

PB/tgh

[1] See Webster's New Universal Unabridged Dictionary (2003), p. 1017 ("its" is a pronoun and the possessive form of "it") and The American Heritage Dictionary (Office Edition 1983), p. 371 ("its" is the possessive form of "it," used as a modifier before a noun).

[2] The general rule is that where language is unambiguous, the clearly expressed intent must be given effect, and there is no room for construction. Fine v. Moran, 77 So. 533, 536 (Fla. 1917); Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984).

[3] See 2013 Florida House of Representatives Final Bill Analysis of CS/CS/HB 7125, p. 31, dated June 18, 2013.

[4] Id. at p. 34.

[5] See, e.g., Young v. Progressive Southeastern Insurance Company, 753 So. 2d 80 (Fla. 2000); Dobbs v. Sea Isle Hotel, 56 So. 2d 341 (Fla. 1952) (where statute sets forth exceptions, no others may be implied).

[6] See Samara Development Corporation v. Marlow, 556 So. 2d 1097 (Fla. 1990); Farrey v. Bettendorf, 96 So. 2d 889 (Fla. 1957) (proviso to be strictly construed); State v. Nourse, 340 So. 2d 966 (Fla. 3d DCA 1976) (any statutory exception to general prohibition is normally strictly construed against one attempting to take advantage of exception); Ops. Att'y Gen. Fla. 99-11 (1999), 97-89 (1997), and 93-17 (1993).