CEO 00-5 -- March 10, 2000
CITY MAYOR SUPERMARKET OWNER VOTING ON AMENDMENT TO TRANSIENT RENTAL ORDINANCE
To: Robert Tischenkel, Esquire, City Attorney (Key West)
A city mayor whose supermarket receives grocery sales through a business purchasing for transient tenants in a neighborhood is prohibited from voting by Section 112.3143(3)(a), Florida Statutes, on a measure which would exempt the neighborhood from an ordinance banning short-term rentals. CEO's 89-45 and 93-4 are referenced.
Is a city mayor prohibited by Section 112.3143(3)(a), Florida Statutes, from voting on a measure to exempt a neighborhood from a transient rental ban, where the mayor's supermarket makes grocery sales to a business supplying short-term tenants in the neighborhood?
Under the circumstances recited herein, your question is answered in the affirmative.
By your letter of inquiry, we are advised that Jimmy Weekley serves as Mayor of the City of Key West and that he is the owner of a local supermarket with two stores. Further, we are advised that visitors to the City staying in rental units in a particular neighborhood order groceries from a local woman who has set up a business to purchase groceries in advance and stock refrigerators prior to their arrival; that the woman buys the groceries from the Mayor's supermarket (though she could buy them from any supermarket); and that, on an annual basis, advanced purchases (through the woman's business and from all other sources) constitute less than five percent of the Mayor's supermarket's business.
In addition, you advise that in November 1998 the City Commission enacted an ordinance banning the transient rental of residences; that the ordinance is now subject to administrative litigation and has not yet become effective; that the purpose of the ordinance is to prevent the un-licensed renting of a residence for a period of less than twenty-eight days; that a considerable number of property owners within the City have been engaged in transient rentals, particularly in the neighborhood in which the woman's grocery-stocking business operates; and that of the approximately five hundred residential units in the neighborhood, approximately one half were sold to second homeowners and others who rent the units on short-term bases and who cannot receive an occupational license from the City to do so.
Additionally, we are advised that the City Commission may consider an amendment to the ordinance that will exempt certain zoning districts from the transient-rental ban; that the neighborhood in question is located in one of the districts that would be exempted; and that much (but not all) of the Mayor's supermarket's advanced grocery sales are purchased by visitors to the neighborhood, through the woman's business.
The voting conflicts law, within the Code of Ethics for Public Officers and Employees, applicable to local, elected public officers such as the Mayor, provides:
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. [Section 112.3143(3)(a), Florida Statutes.]
The voting conflicts law requires that a local, public officer declare private interest, abstain from voting, and timely file a memorandum of voting conflict (CE Form 8B) regarding measures which would inure to the officer's special private gain or loss or to the special private gain or loss of other enumerated persons and entities.
We find that a measure to exempt the neighborhood that generates transient tenant grocery sales for the Mayor's supermarket from a ban on transient rentals is a measure which would inure to the Mayor's special private gain or loss, and therefore a measure on which he must declare, abstain, and file. The existing, concrete situation (actual grocery sales through the woman's business to transient tenants in the neighborhood) harmonizes this result with that of our past opinions finding officers to be subject to the voting conflicts law, and distinguishes it from that of our past opinions in which we found no voting conflict due to any gain or loss being remote and speculative. See, for example, CEO 89-45, in which we found that a city commissioner who was owner of a steel company had no voting conflict regarding construction projects in the city, provided he had not entered into negotiations and had not had contact with the contractor to whom he might supply steel, and CEO 93-4, in which we found no voting conflict would occur were a city commissioner to vote to increase rent in a city-owned mobile home park located across the street from land the commissioner proposed to privately develop into another mobile home park.
Accordingly, we find that the Mayor is subject to the voting conflicts law and is prohibited from voting on measures affecting short-term/transient rentals in a neighborhood from which his supermarket receives advanced grocery sales.
ORDERED by the State of Florida Commission on Ethics meeting in public session on March 9, 2000 and RENDERED this 10th day of March, 2000.
Peter M. Dunbar
We are advised that the woman's husband works as a manager at the Mayor's supermarket.
We see nothing in the scenario presented that indicates the applicability of Section 112.313(7)(a), Florida Statutes.
We note that a "size-of-the-class" analysis is irrelevant to this opinion. While it is represented that there are approximately 250 short-term rental units in the neighborhood, it is not represented that the number of supermarkets benefiting from transient purchases from the neighborhood is large.