CEO 91-70 -- December 6, 1991

VOTING CONFLICT OF INTEREST

CITY COMMISSIONER VOTING ON MATTERS AFFECTING

PUBLIC PARKING IN VICINITY OF RESTAURANT/LOUNGE

OWNED BY CORPORATION OF WHICH HE IS EMPLOYEE, OFFICER,

AND DIRECTOR, AND OF WHICH HIS MOTHER IS SOLE STOCKHOLDER

To: James A. Devito, Attorney for City of St. Petersburg Beach

SUMMARY:

A city commissioner is not required to abstain under the voting conflicts law from voting on a measure to extend parking meter enforcement hours, where he is employed by and where his mother owns a restaurant/lounge which depends on on-street parking. Any gain or loss from the measure to the commissioner's principal or relative would be remote and speculative. CEO 82-64 and CEO 89-32 are referenced.

QUESTION 1:

Would a city commissioner be required to abstain from voting on a proposal to extend the hours of city parking meter enforcement where such an extension might affect the availability of parking for potential customers of a restaurant and lounge owned by a corporation of which the commissioner is an employee, officer, and director, and of which his mother is the sole shareholder?

Your question is answered in the negative.

In your letter of inquiry and subsequent communication with our staff, you advise that Bruno Falkenstein is an elected City Commissioner of the City of St. Petersburg Beach. You further advise that he "co-manages" a restaurant and liquor lounge that is owned by a private corporation. The Commissioner serves as treasurer and secretary of the corporation, is a member of its board of directors, and is employed by it, receiving a fixed salary. The Commissioner owns no stock in the corporation; however, his mother is its sole shareholder.

The restaurant is located in Commission District 4 (which is the Commissioner's district), an area of the City commonly known as Pass-a-Grille Beach, in a small commercial zone (approximately two blocks in size) which is surrounded by a large residential zone. Several other establishments, including restaurants and lounges, are located near the commercial zone, which is a popular destination for diners and entertainment seekers. There are approximately one dozen businesses in the commercial zone; about five of these are restaurant/lounges. There is virtually no off-street parking in the commercial zone, and thus the establishments there depend entirely on public-street-metered parking for their customers.

There are more than two commercial areas in the City; however, only the commercial zone of District 4 and one other commercial area rely on on-street parking for their customers. The other commercial area utilizes on-street parking without meters. The two commercial areas relying on on-street parking contain a small percentage of the total number of commercial establishments in the City. The other area of the City where meters are used besides District 4's commercial area is the beach area, where metered lots are used. There are no metered lots in the Pass-a-Grille area. The metered parking is not used by those parking for residential purposes in the Pass-a-Grille area, although the City does issue passes to the residents which allow them to park at metered spaces without the use of coins. In District 4, there are approximately 800 metered street parking spaces. There are approximately 500 public street and lot metered spaces in the rest of the City.

District 4 covers an area of about 22 blocks. Two of the twenty-two blocks of District 4 comprise the commercial zone; the rest of the District is residential, with various types of permitted parking. Seventh, Eighth, and Ninth Streets are the focus of the commercial zone, and commercial-use parking extends for five or six blocks beyond the commercial zone into the residential zone due to the volume of business.

Public parking in the commercial zone and surrounding residential areas is regulated by the City through a system of zones. Some of the zones provide for permit parking only at all times, some provide for permit parking only during specified hours, and some provide for parking in metered spaces. Recent expansion of the subject restaurant has resulted in complaints from residents of the adjoining residential area. In trying to solve the residents' complaints, you relate, a proposal has been made to extend the parking meter enforcement time from the present 5:00 p.m. to 6:00 p.m. You advise that this will impact prospective customers of the subject restaurant and other affected businesses and perhaps will affect the permit restricted parking areas in the district, now utilized primarily as residential parking. Also, you relate that the proposal to increase meter enforcement hours would reach all meters throughout the City, not just the public street metered spaces of District 4. Increasing the meter enforcement time by one hour will increase the time at which parking in metered spaces without a residential meter exemption pass will require payment, as no charge or permit is required to park in the metered spaces after the enforcement time period. After 5:00 p.m., no permit is required in some of the unmetered spaces in the residential area; thus, an argument can be made that the potential commercial customers will use unmetered, unpermitted parking in residential areas proximate to the commercial area if the enforcement period is extended. The enforcement extension would apply to all metered spaces in the City, both metered lot parking and metered street parking. Some parking in District 4 requires a permit round-the-clock, and some parking in District 4 requires a permit at some times and not at others.

Section 112.3143(3), Florida Statutes, provides in relevant part:

No county, municipal, or other local public officer shall vote in his official capacity upon any measure which would inure to his special private gain; which he knows would inure to the special private gain of any principal by whom he is retained or to the parent organization or subsidiary of a corporate principal by which he is retained, other than an agency as defined in s. 112.312(2); or which he knows would inure to the special private gain 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 his interest in the matter from which he is abstaining from voting and, 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.

Since the corporation owning the restaurant is the Commissioner's principal by virtue of his being its salaried employee and a member of its board of directors (see CEO 82-64), and since his mother (sole owner of the corporation) is his "relative" within the meaning of the above-quoted statutory section, whether he may vote on the meter enforcement measure turns on whether the measure would inure to the special private gain of the corporation.

We find that the mere extension of meter enforcement, as you relate, cannot be said to directly generate more business for the restaurant or to otherwise directly provide tangible benefits to it. Because residents have passes which negate the need to use coins, an extra hour of meter enforcement would not have the effect of freeing metered spaces for an extra hour's use by non-residential parkers who might patronize the restaurant. Further, since the restaurant is not the only establishment of its kind in the commercial area in which it is located, it would be speculative to say that any additional commercial parkers who might park due to the meter enforcement change would necessarily go there. Likewise, it cannot be said, under your facts, that the extension would decrease spaces available for potential customers. See CEO 89-32.

Accordingly, we find that the Commissioner properly may vote to increase the period of parking meter enforcement.

QUESTION 2:

Would the voting conflicts law be violated were the Commissioner to vote on any parking plan affecting public street metered or permit parking in the vicinity where customers of the restaurant/lounge use such parking space?

Because the specifics of particular plans could vary greatly and, therefore, some plans could cause direct special gain to the establishment if implemented and others might not, we are unable to answer this question. If, however, a particular plan materializes in sufficient detail to enable you to present us with a factual scenario, you should request another opinion from us.