VOTING CONFLICT OF INTEREST
TOWN ADVISORY TASK FORCE MEMBERS EMPLOYED BY BUSINESSES
CURRENTLY APPROVED TO SERVE ALCOHOL VOTING ON
RECOMMENDATIONS TO BE PRESENTED TO TOWN COUNCIL CONCERNING
ORDINANCE ALLOWING EXPANSION OF ALCOHOL SALES INTO
ENVIRONMENTALLY-CRITICAL ZONING DISTRICT
To: Name withheld at person's request (Fort Myers Beach)
SUMMARY:
Town advisory task force members employed as general managers of businesses that currently are approved to serve alcohol on the beach are not prohibited by the voting conflicts law from voting on limited recommendations to be presented to the town council concerning an ordinance to allow expansion of alcohol sales into an environmentally-critical zoning district. Under the circumstances presented, any gain or loss to the members' employers would be remote and speculative. CEO 05-15, and CEO 91-61 are referenced.1
QUESTION:
Are town consumption-on-premises task force members, who are employed as general managers of businesses currently serving alcohol and located on the beach, prohibited by the voting conflicts law from voting on limited recommendations that will be presented to the town council regarding a proposed ordinance that would allow for expansion of consumption of alcohol on the premises into an environmentally-critical zoning district?
Under the circumstances presented, your question is answered in the negative.
You state that you are the Town Attorney for the Town of Fort Myers Beach and you make this request on behalf of two members of a recently established Task Force. In your letter of inquiry, you state that the Town of Fort Myers Beach recently formed a Task Force to provide the Town Council with input and limited recommendations concerning a proposed ordinance that would, if adopted, amend the Town's Land Development Code to permit the expansion of consumption-on-premises ("COP") alcohol sales for beachfront businesses located in the Town. You state the Task Force includes two members who are employed as general managers of beachfront businesses which would be eligible to seek Town approval for expansion, should such an ordinance be enacted. You relate that the Task Force was asked for limited input regarding the COP expansion ordinance, specifically regarding "staking out" the dimensions of the affected expansion area and offering recommendations regarding the use of identifiable, biodegradable, and/or disposable drink cups in the expansion area.
You state that currently there are 16 businesses in the Town that are permitted for COP in areas that are beachside and adjacent to the environmentally-critical ("EC") zoning district. You further relate that although the permitting was initially proposed as an administrative function, if the ordinance as currently envisioned is adopted, all of those businesses would be eligible to apply to the Town for a special exception to be granted by the Town Council, with any conditions or requirements the Town Council would deem appropriate, to expand into the EC zoning district. The final decision regarding the granting of a special exception under the proposed ordinance would rest solely with the Town Council. You state that such a proposed ordinance would establish the guidelines and procedure for obtaining that permission through the granting of a special exception which would provide the Town Council the ability to establish any additional conditions or requirements deemed appropriate. If the proposed ordinance is eventually enacted, each of the eligible businesses would have to apply for such special exception to expand their business and the Task Force (their work having been completed) would not be involved in that process. You also state that a permit from DEP will be required before service of alcohol on the beach will be permitted, since any proposed ordinance expanding alcohol sales into the EC area would have to provide that the specific identified area of alcohol beverage sales and service be delineated using ropes and bollards. You also state that a proposed ordinance may further allow businesses that do not have COP to seek a special exception for expansion into the EC zoning district. You also emphasize that the Town Council reserves the right to take whatever action it, within its governmental discretion, deems appropriate concerning the proposed ordinance regarding the expansion of COP into the EC zoning district.
The voting conflicts law applicable to local public officers2 such as the members of the COP Task Force is Section 112.3143 (3)(a), Florida Statutes, which provides:
VOTING CONFLICTS.—No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure to his or her special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, other than an agency as defined in s. 112.312(2); or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of the officer’s interest in the matter from which he or she is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his or her interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes.
It is difficult to glean a precise voting scenario from the facts you have presented. However, we can offer you general advice. In a number of opinions we have found that Section 112.3143(3)(a) is not applicable when the gain or loss is "remote and speculative." That is, if there is substantial uncertainty at the time of the vote as to whether the measure will affect the officer, his business, his principal, or his employer and, if so, what the nature or magnitude of the gain or loss might be, the measure/vote does not require the officer's declaration of interest, voting abstention, and filing of CE Form 8B. For example, in CEO 05-15 we addressed a question from a city commissioner regarding voting on amendments to an affordable housing ordinance. There, we observed that in addition to passage of the ordinance by the City Commission, it would have to be approved by the (then-existing) Department of Community Affairs, and specific permit applications would have to be approved by the City's development review committee and its planning board, and may have to be approved by the City Commission, in order for the commissioner's law client, a developer, to engage a housing project (to realize gain). In CEO 91-61, the Commission considered whether a voting conflict of interest was present where a city commissioner owned property across the street from a lake which, it was proposed, would be encircled by a sidewalk. In that matter, our opinion discussed the fact that the current zoning of the commissioner's property would preclude more profitable and intensive use of the property without a zoning change, and we concluded that even assuming, for the sake of argument, that the measure being voted on (whether to extend the sidewalk) would create real economic benefits to the commissioner's property, a zoning change would be required to actually realize the benefit. Since the outcome of a request for rezoning was by no means certain, we found any gain to the commissioner from the vote extending the sidewalk would be remote and speculative.
While the businesses in this case do not face as many hurdles as those in CEO 05-15, it is clear the proposed ordinance, if adopted at all, would not in and of itself provide any businesses with approval for COP in the EC zoning district. If the ordinance is adopted, each business desiring to expand into the EC zoning district would have to obtain a permit from DEP, apply for a special exception, and address whatever conditions and requirements the Town Council might deem appropriate and impose in such approval process. We therefore conclude that because there is sufficient uncertainty as to whether a COP Task Force vote upon the limited matters of the dimension of the expansion and the beverage cups to be used would ever result in gain or loss to the COP Task Force members' employers, that any gain or loss from the recommendations of the Task Force would be remote and speculative.
Accordingly, we find that the COP Task Force members will not be presented with a voting conflict regarding the limited recommendations the Task Force may make to the Town Council regarding the dimension of the expansion area and the beverage cups to be used in the alcohol-sale zone along beachfront property.
Your question is answered accordingly.
ORDERED by the State of Florida Commission on Ethics meeting in public session on July 27, 2012 and RENDERED this 1st day of August, 2012.
____________________________________
Susan Horovitz Maurer, Chair
[1]Prior opinions of the Commission on Ethics can be obtained at www.ethics.state.fl.us.
[2]Section 112.3143(1)(a), Florida Statutes, states that "public officer" includes any person elected or appointed to hold office in any agency, including any person serving on an advisory body.