Can a Florida city charter require voter approval before changing or repealing an ordinance the voters enacted?

Plain-English summary

Treasure Island's charter has a "lock-in" clause: any ordinance the voters put into effect (or repealed) by initiative or referendum can later be amended or repealed only by the voters at the polls, not by the city commission alone. The city attorney asked the Attorney General's office whether that clause is valid, raising three angles, including whether state law (section 166.021(3)) preempts it and whether it conflicts with the state constitution's election provision.

The office declined to answer. Its consistent practice is that it will not opine on the validity of an existing, duly enacted charter provision; it must presume such a provision valid until a court of competent jurisdiction says otherwise. Ruling on validity would also drift toward deciding the constitutionality of an enacted local law, which the office leaves to the courts.

In an effort to be helpful, the office offered general background rather than a ruling. It noted it has generally recognized a city's authority to amend its charter to limit or restrict the exercise of specific powers (for example, Opinion 90-38 concluded a charter could require referendum approval to issue municipal bonds). It pointed to the requester's own references, the Second District Court of Appeal's 2006 Citizens for Responsible Growth v. City of St. Pete Beach decision (which upheld charter amendments requiring referendum approval for development and comprehensive-plan changes) and the Fifth District's 1984 Gaines v. City of Orlando decision (which found a proposed "no repeal except by referendum" charter amendment conflicted with the Municipal Home Rule Powers Act). And it cited its own Opinion 02-79: state law neither requires nor prohibits citizen initiatives for municipal ordinances, and under broad home-rule powers a municipality could authorize such initiatives and prescribe the areas in which ordinances may be proposed.

Currency note

This opinion was issued in 2011. 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.

What the opinion concluded (2011)

The office concluded that it could not comment on the validity of Treasure Island's existing charter provision and declined to answer the city attorney's questions. It explained that it must presume the validity of a duly enacted charter provision until a court declares otherwise, and that, to avoid intruding on the judiciary, it generally does not render opinions requiring a determination of the constitutionality of an existing statute or ordinance.

Offering general assistance, the office observed that it has recognized a city's authority to amend its charter to limit or restrict the exercise of specific corporate, legislative, and governmental powers, citing Opinion 90-38 (referendum approval for municipal bonds) among others, while also noting a contrary limit in Opinion 86-89 (a charter amendment barring ad valorem taxes without referendum would violate section 195.207). It noted the requester's cited cases, Citizens for Responsible Growth v. City of St. Pete Beach (Fla. 2d DCA 2006), upholding referendum-approval charter amendments, and Gaines v. City of Orlando (Fla. 5th DCA 1984), which found a "no repeal except by referendum" charter amendment conflicted with the Municipal Home Rule Powers Act under section 166.031(1) and (3). Finally, drawing on Opinion 02-79, it stated that state law neither requires nor prohibits citizen initiatives for municipal ordinances and that home-rule powers let a municipality authorize such initiatives and define the areas open to them. This was an informal advisory letter.

Common questions

Q: Did the Attorney General say Treasure Island's charter clause is valid or invalid?
A: Neither. The office declined to opine on the validity of an existing charter provision, presuming it valid until a court rules. The page describes only the general background the office offered.

Q: Can a Florida city charter require a referendum to change or repeal an ordinance?
A: The office did not decide that for Treasure Island. It noted that cities have broad home-rule authority over their charters and that courts have both upheld referendum-approval charter amendments (Citizens for Responsible Growth) and struck down a "no repeal except by referendum" amendment as conflicting with the Home Rule Powers Act (Gaines).

Q: Does Florida law require cities to allow citizen initiatives on ordinances?
A: Per Opinion 02-79, as the office summarized, state law neither requires nor prohibits citizen initiatives for municipal ordinances. A municipality may authorize them under its home-rule powers and prescribe the areas in which ordinances may be proposed.

Q: Why won't the Attorney General just answer the validity question?
A: To avoid intruding on the courts. The office presumes a duly enacted charter provision valid and does not opine on the constitutionality of an existing local law; that determination is for a court.

Background and statutory framework

Florida municipalities operate under broad home-rule authority. The Municipal Home Rule Powers Act (Chapter 166, created by Ch. 73-129, Laws of Fla.) lets a municipal legislative body act on any subject the Legislature may act upon, except as limited (section 166.021(3)), and section 166.031 governs charter amendments and the electors' right to propose them. Treasure Island adopted its charter in 1978, after the Municipal Home Rule Powers Act, and its Article VII provides for citizen initiative and referendum with the lock-in clause in section 7.07(c). Because the question asked whether that existing clause is valid (including against Article VI, section 5 of the Florida Constitution on elections), it fell within the category the office leaves to the courts. The office's general observations rest on its prior opinions and the cited Citizens for Responsible Growth and Gaines decisions.

Citations and references

Statutes and constitutional provisions:

• section 166.021(3), Florida Statutes (municipal legislative authority)
• Chapter 166, Florida Statutes (Municipal Home Rule Powers Act)
• section 166.031(1) and (3), Florida Statutes (charter amendment)
• Article VI, section 5, Florida Constitution (elections)

Cases:

• Citizens for Responsible Growth v. City of St. Pete Beach, 940 So. 2d 1144 (Fla. 2d DCA 2006), upheld referendum-approval charter amendments
• Gaines v. City of Orlando, 450 So. 2d 1174 (Fla. 5th DCA 1984), "no repeal except by referendum" amendment conflicted with the Home Rule Powers Act

Prior Attorney General opinions referenced: 90-38, 02-79, 82-101, 09-12, 10-02, 86-89.

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/voter-approval-of-municipal-ordinances
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8164

Original opinion text

Ms. Maura Kiefer

Treasure Island City Attorney

The Alexander Building

535 Central Avenue

St. Petersburg, Florida 33701

Dear Ms. Kiefer:

On behalf of the City of Treasurer Island, you ask several questions relating to the validity of a charter provision requiring voter approval to change or repeal any ordinance previously enacted or repealed by the electorate.[1]

It appears that the City of Treasure Island currently has such a provision in its charter. According to your letter the city charter was adopted in 1978, after the adoption of the Municipal Home Rule Powers Act, Chapter 166, Florida Statutes.[2] Article VII of the city charter provides for citizens initiatives. Pursuant to section 7.01 of the charter, the qualified electors of the city have the authority to propose ordinances and to require reconsideration of any adopted ordinance with certain exceptions.[3] Section 7.07(c) of the city charter provides:

"Amending or repealing initiative or referendum laws. Any local ordinance voted into effect, or repealed, by the electorate pursuant to initiative or referendum procedures as set forth in this Charter, shall only be subsequently amended or repealed by the electorate at the polls. This section shall be retroactive, as allowed by general law. This section shall not be construed to prevent the city commission from adopting Charter amendments, or initiated ordinances, through the procedures set forth above in sections 6.02(a)[4] and 7.01, respectively."

Your inquiries thus relate to the validity of an existing city charter provision. This office has no authority to comment upon the validity of an existing charter provision; rather, this office must presume the validity of any duly enacted provision until and unless a court of competent jurisdiction declares otherwise.[5] Accordingly, this office must decline to comment upon the issues raised in your letter.

In an effort to be of some assistance, however, I would note that this office has generally recognized the authority of a city to amend its charter to limit or restrict the exercise of specific corporate, legislative, and governmental powers.[6] For example, in Attorney General Opinion 90-38, this office concluded that a city charter could be amended to require referendum approval for the issuance of municipal bonds. In your letter, you recognize the 2006 decision of the Florida Supreme Court in Citizens for Responsible Growth v. City of St. Pete Beach,[7] in which the Court upheld the proposed municipal charter amendments that, among other things, required referendum approval for changes in development plans and comprehensive plans or amendments.

I note that you also refer to the 1984 decision of the Fifth District Court of Appeal in Gaines v. City of Orlando,[8] in which the court concluded that a proposed amendment to the city charter that would make the charter, if amended as proposed, not subject to repeal except by another referendum election of the registered voters of the city, conflicted with the Municipal Home Rule Powers Act. In reaching this conclusion, the court cited section 166.031(1) and (3), Florida Statutes. As this office recognized in Attorney General Opinion 02-79, section 166.031, Florida Statutes, relates to amendment of the municipal charter and establishes the right of the electors to submit proposed amendments to the municipal charter. It does not establish a right for electors to submit proposed amendments to, or to propose, municipal ordinances. Thus, this office concluded:

"State law neither requires nor prohibits citizens' initiatives for the passage of municipal ordinances. Under the broad home rule powers granted to municipalities, it appears that a municipality could authorize such initiatives. In authorizing such initiatives, it would appear to be within the power of the municipality under its charter to prescribe those areas in which ordinances may be proposed." (citations omitted)

I trust you will understand that the duties of this office are prescribed by law. I hope, however, that the above informal comments may be of assistance.

Sincerely,

Joslyn Wilson

Assistant Attorney General

JW/tsh

Enclosure: Statement of Policy

[1] You set forth three questions: 1) whether s. 166.021(3), Fla. Stat., preempts such a charter provision; 2) whether such a charter provision violates Art. VI, s. 5, Fla. Const.; and 3) whether the city's charter provision conflicts with s. 166.021(3), Fla. Stat. Section 166.021(3) recognizes the authority of the legislative body of a municipality to enact legislation concerning any subject matter upon which the state Legislature may act, except as provided therein. Article VI, s. 5 of the Florida Constitution, relates to the holding of primary, general, and special elections.

[2] The Municipal Home Rule Powers Act was created by Ch. 73-129, Laws of Fla.

[3] Subsections (a) and (b) of s. 7.01, Treasure Island City Charter, provide:

"(a) Initiative. The qualified electors of the city shall have power to propose ordinances to the commission and, if the commission fails to adopt an ordinance so proposed without any change in substance, to adopt or reject it at a city election, provided that such power shall not extend to the budget or capital program or any ordinance relating to appropriation of money, levy of taxes or salaries of city officers or employees.

(b) Referendum. The qualified electors of the city shall have power to require reconsideration by the commission of any adopted ordinance and, if the commission fails to repeal an ordinance so reconsidered, to approve or reject it at a city election, provided that such power shall not extend to the budget or capital program or any emergency ordinance or ordinance relating to appropriation of money, levy of taxes or salaries of city officers or employees."

[4] This provision relates to amending the city charter.

[5] See this office's statement concerning Attorney General Opinions, a copy of which is enclosed, stating that "[i]n order not to intrude upon the constitutional prerogative of the judicial branch, opinions generally are not rendered on questions pending before the courts or on questions requiring a determination of the constitutionality of an existing statute or ordinance."

[6] Op. Att'y Gen. Fla. 82-101 (1982). And see Ops. Att'y Gen. Fla. 09-12 (2009) (voter approval of capital projects); 10-02 (2010) (limitation on expenditures). But see Op. Att'y Gen. Fla. 86-89 (1986) (attempt to amend a charter to provide that no ad valorem taxes on real and personal property could be imposed without referendum approval would violate s. 195.207, Fla. Stat., prohibiting a municipal charter provision limiting the governing body's authority to levy ad valorem taxes).

[7] 940 So. 2d 1144 (Fla. 2d DCA 2006).

[8] 450 So. 2d 1174 (Fla. 5th DCA 1984).