CEO 91-68 -- December 6, 1991

GIFT ACCEPTANCE / DISCLOSURE

STATE REPRESENTATIVE RECEIVING ADMISSION TO AUTOMOBILE RACES FOR PURPOSE OF MEETING LEADERS OF BUSINESSES AND PROMOTING THEIR RELOCATION TO HIS DISTRICT

To: The Honorable Dick Graham, State Representative, District 28 (DeLand)

SUMMARY:

A State Representative is not prohibited under the gift law from accepting admissions to automobile races where the speedway's owner is a principal or employer of a lobbyist, provided the value of all admissions accepted for a particular race does not exceed $100. Under Section 112.3148, Florida Statutes, the admissions are not tickets having a face value, and thus their value is to be determined through proration of costs among persons invited to particular races. CEO's 91-39 and 91-45 are referenced.

QUESTION:

Are you, a State Representative, prohibited by the gift law from attending races at the Daytona International Speedway for the purpose of encouraging the relocation of businesses to Volusia County?

Your question is answered in the negative, subject to the condition noted below.

In your letter of inquiry, in telephone conversation between your legislative assistant and our staff, and in communication arranged by your legislative assistant between our staff and representatives of the entities described herein, we are advised that you serve as a member of the Florida House of Representatives. We are advised further that you periodically are requested by the Volusia County Business Development Corporation (VCBDC) to attend races at the Daytona International Speedway for the purpose of meeting with representatives of businesses and promoting relocation of those businesses to Volusia County. The rest of the Volusia County legislative delegation, along with members of local governmental bodies in the County, also are invited to attend races for the same purpose. The business prospects are brought to the races by VCBDC.

The most expensive ticket to a race run in June costs $55. The most expensive ticket to the Daytona 500, which is run in February, costs $100 or more. Those invited to a race by VCBDC are provided a pass which admits them to a suite at the racetrack. The passes have no face value, cannot be purchased by the general public, and can be used only by an invited official and persons accompanying him. Usually, an official is given two passes to a race: one for himself and one for his companion. The suite does not offer the best seating at the racetrack for viewing races. Food and drink, catered at the expense of VCBDC, are provided in the suite. There is no paid parking at the speedway. The business contact in the suite involves informal conversation between those viewing the race there.

VCBDC "leases" the suite from the speedway's owner, International Speedway Corporation, for a token consideration of one dollar. The lease term is one year, and renewal is possible upon the agreement of both parties. Under the lease, VCBDC is to use the suite to promote the attraction of businesses to the County. VCBDC can use the suite during races and at other times. Specifically, the corporation (as do lessees of comparable suites) gets 75 admission passes to the suite which are good for 11 event days in a calendar year. The actual cost that the speedway's owner charges for leasing suites comparable to the corporation's suite is $40,000 per year.

A document submitted with your opinion request, entitled "RULES AND REGULATIONS FOR DAYTONA INTERNATIONAL SPEEDWAY, SUITE 'P,' provides in part that "The Volusia County Business Development Corporation (VCBDC) and the Daytona International Speedway are proud to have you as their guest for this special racing event. We are fortunate to have this beautiful, new Suite to use during these events to promote business and industry in Volusia County." A letter to you from the executive director of the corporation commenting on the document provides in part, "These rules and regulations are established by the Volusia County Business Development Corporation and only pertain to our suite. The other suites have the opportunity to set their own guidelines for their guests."

VCBDC is a nonprofit organization concerned with attracting businesses to Volusia County. It has eight board members, none of whom is affiliated with the speedway. Any person can become a member of the corporation by paying dues. It is your present understanding that the corporation does not employ a legislative lobbyist and has not done so for at least the past year, and it is not a member of any associations which employ or so employed a lobbyist. The corporation is not a political committee or a committee of continuous existence. The corporation came into existence in 1984 and is a not-for-profit, tax-exempt entity under the Internal Revenue Code. All of the corporation's funds are spent on its programs, which include the production of a County data profile, the production and dissemination of brochures and information about the County and its business amenities, advertising the County as a desirable location for business, entertaining prospects who might locate businesses in the County, and making or promoting a video about the County.

The corporation has eight directors and three ex officio directors, all of whom are business people. There is no overlap between the corporation's directors and the speedway's owner's directors, there are no overlapping employees, and the only business between the speedway and the corporation is the lease of the suite. The majority (approximately 70%) of the corporation's funding comes from Volusia County and the cities within the County. The balance of the corporation's funding is from yearly membership dues. There are two types of membership. "Ambassador" membership, similar to a chamber of commerce membership, costs $1,000 per year. General membership costs $250 per year. There are approximately 55 ambassadors and approximately 45 general members. Membership is generally open to all persons or business entities. The speedway's owner is an ambassador member of the corporation, without paying $1,000 annually because the value of the speedway suite provided to the corporation is reckoned by the corporation to be worth at least $1,000 annually. The speedway's owner does employ legislative lobbyists.

Section 112.3148(4), Florida Statutes, provides in relevant part:

A reporting individual or procurement employee or any other person on his behalf is prohibited from knowingly accepting, directly or indirectly, a gift from a political committee or committee of continuous existence, as defined in s. 106.011, or from a lobbyist who lobbies the reporting individual's or procurement employee's agency, or directly or indirectly on behalf of the partner, firm, employer, or principal of a lobbyist, if he knows or reasonably believes that the gift has a value in excess of $100; however, such a gift may be accepted by such person on behalf of a governmental entity or a charitable organization. If the gift is accepted on behalf of a governmental entity or charitable organization, the person receiving the gift shall not maintain custody of the gift for any period of time beyond that reasonably necessary to arrange for the transfer of custody and ownership of the gift.

Section 112.312(9), Florida Statutes, defines "gift" and provides exclusions from the definition. That section provides in relevant part:

(a) 'Gift,' for purposes of ethics in government and financial disclosure required by law, means that which is accepted by a donee or by another on the donee's behalf, or that which is paid or given to another for or on behalf of a donee, directly, indirectly, or in trust for his benefit or by any other means, for which equal or greater consideration is not given, including:

1. Real property.

2. The use of real property.

3. Tangible or intangible personal property.

4. The use of tangible or intangible personal property.

5. A preferential rate or terms on a debt, loan, goods, or services, which rate is below the customary rate and is not either a government rate available to all other similarly situated government employees or officials or a rate which is available to similarly situated members of the public by virtue of occupation, affiliation, age, religion, sex, or national origin.

6. Forgiveness of an indebtedness.

7. Transportation, lodging, or parking.

8. Food or beverage, other than that consumed at a single sitting or event.

9. Membership dues.

10. Entrance fees, admission fees, or tickets to events, performances, or facilities.

11. Plants, flowers, or floral arrangements.

12. Services provided by persons pursuant to a professional license or certificate.

13. Other personal services for which a fee is normally charged by the person providing the services.

14. Any other similar service or thing having an attributable value not already provided for in this section.

(b) 'Gift' does not include:

1. Salary, benefits, services, fees, commissions, gifts, or expenses associated primarily with the recipient's employment or business.

2. Contributions or expenditures reported pursuant to chapter 106, campaign-related personal services provided without compensation by individuals volunteering their time, or any other contribution or expenditure by a political party.

3. An honorarium or an expense related to an honorarium event paid to a person or his spouse.

4. An award, plaque, certificate, or similar personalized item given in recognition of the donee's public, civic, charitable, or professional service.

5. An honorary membership in a service or fraternal organization presented merely as a courtesy by such organization.

6. Food or beverage consumed at a single sitting or event.

7. The use of a public facility or public property, made available by a governmental agency, for a public purpose.

Section 112.3148(2)(b), Florida Statutes, defines "lobbyist". That section provides:

'Lobbyist' means any natural person who, for compensation, seeks, or sought during the preceding 12 months, to influence the governmental decisionmaking of a reporting individual or procurement employee or his agency or seeks, or sought during the preceding 12 months, to encourage the passage, defeat, or modification of any proposal or recommendation by the reporting individual or procurement employee or his agency. With respect to an agency that has established, by rule, ordinance, or law, a registration or other designation process for persons seeking to influence decisionmaking or to encourage the passage, defeat, or modification of any proposal or recommendation by such agency or an employee or official of the agency, the term 'lobbyist' includes only a person who is required to be registered or otherwise designated as a lobbyist in accordance with such rule, ordinance, or law or who was during the preceding 12 months required to be registered or otherwise designated as a lobbyist in accordance with such rule, ordinance, or law.

Due to the totality of circumstances presented in your scenario, the close relationship between the corporation and the speedway's owner, and the language of the document quoted above, we find that the admissions would constitute an indirect gift to you from the speedway's owner (a principal or employer of a lobbyist who lobbies your agency) or a joint gift from the corporation and the speedway's owner. As such, the admissions may be accepted by you only if their value does not exceed $100.

Section 112.3148(7), Florida Statutes, provides for valuation of a gift as follows, in relevant part:

(a) The value of a gift provided to a reporting individual or procurement employee shall be determined using actual cost to the donor, and, with respect to personal services provided by the donor, the reasonable and customary charge regularly charged for such service in the community in which the service is provided shall be used. If additional expenses are required as a condition precedent to eligibility of the donor to purchase or provide a gift and such expenses are primarily for the benefit of the donor or are of a charitable nature, such expenses shall not be included in determining the value of the gift.

(c) If the actual gift value attributable to individual participants at an event cannot be determined, the total costs shall be prorated among all invited persons, whether or not reporting individuals or procurement employees.

(h) Entrance fees, admission fees, or tickets shall be valued on the face value of the ticket or fee, or on a daily or per event basis, whichever is greater.

Since the passes have no face value, the admissions should be valued in accordance with Section 112.3148(7)(h), "on a daily or per event basis." Therefore, the value of admissions to a particular event should be determined by prorating the $40,000 cost of the suite among all race days or events and all persons invited thereto. Under your scenario, 75 passes x 11 event days = 825 admissions per year. Thus, the $40,000 actual cost of the suite divided by 825 = $48.48 per admission. Therefore, you may accept the admissions, even though the donor is the principal or employer of a "lobbyist," as long as the value of the total number of admissions received by you for a particular day or event does not exceed $100. Under Section 112.3148(5)(b), Florida Statutes, the speedway's owner, as the employer of a lobbyist, is required to report the gift of the admissions on CE Form 30, Donor's Quarterly Gift Disclosure.

In finding that the admissions are "gifts" within the meaning of the new gift law, we do not view your advocacy, during a race, to recruit businesses to your district as consideration equal to or greater than the value of the gift--a quid pro quo which would take the admissions out from under the definition of a gift--because the advocacy is rendered as part of your public service as a legislator rather than in your purely private capacity. See CEO 91-45. Further, the admissions are not exempt from the definition of "gift" as "salary, benefits, services, fees, commissions, gifts, or expenses associated primarily with the recipient's employment or business," because such compensation was intended by the Legislature to relate to the private employment or business of a public officer rather than to his public position. See CEO 91-39. In addition, the admissions would not be excluded from the definition of "gift" as "honoraria" or "expenses related to honorarium events" because an honorarium is predicated on a written or oral presentation, and conversational advocacy during a race would not constitute such a presentation.

Accordingly, we find that you are not prohibited by the gift law from attending races at the Daytona International Speedway for the purpose of encouraging the relocation of businesses to Volusia County, so long as the value of the total number of admissions to a particular race or event accepted by you does not exceed $100.