City of New Smyrna Beach v. County of Volusia

518 So. 2d 1379, 13 Fla. L. Weekly 309, 1988 Fla. App. LEXIS 306, 1988 WL 4394
CourtDistrict Court of Appeal of Florida
DecidedJanuary 28, 1988
DocketNo. 87-562
StatusPublished
Cited by2 cases

This text of 518 So. 2d 1379 (City of New Smyrna Beach v. County of Volusia) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of New Smyrna Beach v. County of Volusia, 518 So. 2d 1379, 13 Fla. L. Weekly 309, 1988 Fla. App. LEXIS 306, 1988 WL 4394 (Fla. Ct. App. 1988).

Opinion

ORFINGER, Judge.

The pivotal issue in this case is the facial constitutionality of an amendment to the Volusia County Charter which establishes a Beach Trust Commission, and which authorizes the County Council, with the advice of the Commission, to adopt a Unified Beach Code “comprehensively regulating public health, safety and welfare on and pertaining to the [Atlantic Ocean] beach” within the county. The trial court implicitly found the charter amendment to be facially constitutional. We affirm.

This action commenced when four municipalities located in Volusia County challenged the proposed Charter Amendment 4, requesting an injunction to prohibit a county-wide election for approval of the amendment, and a declaratory judgment to determine the constitutionality of the amendment. The trial court denied the request for injunctive relief but reserved ruling on the request for declaratory judgment.

Subsequently, the election was held and Amendment 4 was adopted by a majority of those voting in the election. Three of the four cities then entered voluntary dismissals, leaving the City of New Smyrna Beach (City) as the sole plaintiff. The City amended its complaint alleging that the amendment failed to pass by majority vote within the municipal limits of the City. After the County filed its answer, a non-jury trial was held based on stipulated facts and on the testimony of certain witnesses.

The municipal boundaries of the City include all beaches and oceanfront property within the city limits. Since 1943, the City has performed various governmental activities and operations relating to its beaches. The County, by agreement with the City, provides life guard services and has maintained traffic signals on thoroughfares leading to the beach. The County also has partially provided ambulance services exclusively allocated to the beach and provides coordinated civil defense for the City’s beaches.

In the early 1980’s, because of the conflicting policies of the various municipalities within the county with regard to beach access and regulation, a Chamber of Commerce committee recommended that a sin[1381]*1381gle entity be established to regulate and manage the beaches. In 1983 the Volusia Interlocal Beach Commission (VIBC) was created by agreement between the cities of Daytona Beach Shores, Ormond Beach, Ponce Inlet, and Volusia County to study problems relating to beach management.1 The VIBC issued a final report, recommending a uniform regulatory plan applicable to all Volusia County beaches.

In 1985, a Charter Review Commission was formed to study beach management. In August of 1986, the Commission issued its final report in which it expressed its concern for the political inequities resulting from the control of the beaches by municipalities. The Commission also determined that there “is a definite need to protect the traditional rights of public access and enjoyment of Volusia beaches.” The report further stated that vehicular access to the beach had been dramatically reduced by the policies of beachfront cities. The Commission found that without a county-wide uniform access fee, “public rights of beach access are in great jeopardy,” that off-beach parking was needed to protect public access and that a county-wide beach agency was the most effective method of providing such facilities.

To address the concerns and issues which had been identified during its study, the Commission recommended the adoption of a Charter Amendment2 to create a Beach [1382]*1382Trust Commission for the purpose of unifying beach regulations. As previously indicated, the proposed charter amendment was submitted to the electorate and was approved by a majority vote. The tabulated results indicated that a majority of those voting within each of the affected cities approved the amendment, except for those precincts within New Smyrna Beach, where the majority disapproved it.

At the heart of this controversy is the tension between two apparently conflicting provisions of the Florida Constitution. The first provision provides for the exercise of powers by a chartered county government:

Counties operating under county charters shall have all powers of local self-government not inconsistent with general law, or with special law approved by vote of the electors. The governing body of a county operating under a charter may enact county ordinances not inconsistent with general law. The charter shall provide which shall prevail in the event of conflict between county and municipal ordinances.

Art. VIII, § 1(g), Fla. Const. The second provision provides for the transfer of powers between county and municipal governments:

By law or by resolution of the governing bodies of each of the governments affected, any function or power of a county, municipality or special district may be transferred to or contracted to be performed by another county, municipality or special district, after approval by vote of the electors of the transferor and approval by vote of the electors of the transferee, or as otherwise provided by law.

Art. VIII, § 4, Fla. Const. The city argues that the provisions of Amendment 4 constitute a transfer of the City’s powers relating to the beaches and beach services, and are thus invalid absent approval by the dual referenda specified in Article VIII, section 4.

The City relies on Sarasota County v. Town of Longboat Key, 355 So.2d 1197 (Fla.1978), where the county commission adopted an ordinance proposing five amendments to the county charter which would transfer the responsibilities for performing five distinct governmental functions from four Sarasota County cities to the county. These functions were: (1) air and water pollution control; (2) parks and recreation; (3) roads and bridges; (4) planning and zoning; and (5) police. The trial court issued an injunction prohibiting the referendum and the county appealed. On appeal, there was no serious dispute that the proposed charter amendment involved a transfer of functions between different units of government. Rather, the county argued that under section 1(g) of Article VIII, charter counties were excluded from the dual referendum requirement. The court rejected this argument and expressed its reluctance to “elevate the general provisions of Article VIII, Section 1(g) to a dominant position over the specific provision of Article VIII, Section 4.” In rejecting this argument, the court held that a transfer of governmental powers requires the distinctive features prescribed in Article VIII, section 4, i.e., a law or resolution of the governing bodies of each of the governments affected. It concluded that the five proposed amendments constituted attempts to transfer powers and functions from the cities to the county which were invalid because the requirements of Article VIII, section 4 had not been complied with.

Subsequent decisions of the supreme court have distinguished, and in fact, have clarified the holding of Sarasota County. In City of Palm Beach Gardens v. Barnes, 390 So.2d 1188 (Fla.1980) the court held that a contract between the city and the county sheriff to perform law enforcement services within the city did not fall within the ambit of Article VIII, section 4. In Miami Dolphins v. Metropolitan Dade County,

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Bluebook (online)
518 So. 2d 1379, 13 Fla. L. Weekly 309, 1988 Fla. App. LEXIS 306, 1988 WL 4394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-new-smyrna-beach-v-county-of-volusia-fladistctapp-1988.