CEO 87-24 -- April 23, 1987

CONFLICT OF INTEREST

STATE REPRESENTATIVE OWNING LIQUOR LICENSE

VOTING ON LEGISLATION RELATING TO LIQUOR INDUSTRY

To: The Honorable Dick Locke, State Representative, District 26, Inverness

SUMMARY:

A state representative who owns a liquor license is not prohibited by Section 112.3143, Florida Statutes, from voting on legislation relating to the liquor industry. However, a voting conflict requiring disclosure would be created if the legislator were to vote on particular legislation which would inure to his special benefit. CEO's 81-12 and 77-129 are referenced.

QUESTION:

Would a voting conflict of interest be created were you, a state representative who owns a liquor license, to vote on legislation relating to the liquor industry? Your question is answered in the negative, except in certain circumstances as noted below.

In your letter of inquiry you advise that you are a member of the Florida House of Representatives and that you serve on the House Committee on Regulated Industries and Licensing. You further advise that you recently won a State liquor license in a lottery, and you question whether a conflict of interest would be created were you to vote on legislation relating to the liquor industry.

Section 286.012, Florida Statutes (1985), provides:

No member of any state, county, or municipal governmental board, commission, or agency who is present at any meeting of any such body at which an official decision, ruling, or other official act is to be taken or adopted may abstain from voting in regard to any such decision, ruling, or act, and a vote shall be recorded or counted for each such member present, except when, with respect to any such member, there is, or appears to be, a possible conflict of interest under the provisions of s. 112.311, s. 112.313, or s. 112.3143. In such cases said member shall comply with the disclosure requirements of s. 112.3143.

Additionally, Section 112.3143(2)(a), Florida Statutes (1985), provides:

Except as provided in subsection (3), no public officer is prohibited from voting in his official capacity on any matter. However, any public officer voting in his official capacity upon any measure which inures to his special private gain or the special gain of any principal by whom he is retained shall within 15 days after the vote occurs, disclose the nature of his 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.

In our view these provisions of law allow a State officer who has a conflict of interest the discretion to choose to abstain from voting or to choose to vote and file the required memorandum. The existence of a voting conflict should be disclosed on CE Form 8A, Memorandum of Voting Conflict for State Officers, which should be filed with the person responsible for recording the minutes of the meeting.

A voting conflict of interest exists under Section 112.3143(2)(a), Florida Statutes, if you vote upon a measure which inures to your special private gain or the special gain of any principal by whom you are retained. In previous advisory opinions, we have advised that whether a measure inures to the "special" gain of an officer or his principal will turn in part on the number of persons who stand to benefit from the measure. If the class of persons is large, a "special" gain will result only if there are circumstances unique to the officer or principal, under which the officer or principal would stand to gain more that the other members of the affected class. Where the class of persons benefited is extremely small, the possibility of special gain is much more likely. In CEO 81-12, for example, we advised that if a State Representative whose law firm represented a particular housing authority were to vote upon general legislation which would affect all housing authorities, there would be no "special" gain to a principal by whom he was retained. However, we also advised that if he were to vote upon special legislation inuring only to the benefit of the authority represented by his law firm, that legislation would inure to the special gain of his principal.

Similarly, in CEO 77-129, we found that a voting conflict of interest would not be created where a legislator voted on condominium legislation which affected his clients as it did all condominium owners, because such vote would not inure to the "special" private gain of the legislator or his clients. We advised that a voting conflict of interest would be created only if particular legislation would be of special benefit to the legislator's clients due to their circumstances being unique as compared with all other condominium owners.

Accordingly, we find that no voting conflict of interest would exist were you to vote on general legislation affecting members of the liquor industry in a similar manner. However, we find that a voting conflict of interest would be created were you to vote on liquor industry legislation which would inure to your "special" benefit.