CEO 94-43 -- October 13, 1994
GIFT ACCEPTANCE AND DISCLOSURE
LEGISLATOR RECEIVING SEATING IN UNIVERSITY SKYBOXES FROM LOBBYISTS OR PRINCIPALS OF LOBBYISTS WHO LOBBY THE LEGISLATURE
To: Mr. Mark Herron, Attorney (Tallahassee)
That portion of the annual skybox leasing fee which is paid to lease a skybox at Florida State University's Doak S. Campbell Stadium and which is allocated to the F.S.U. Foundation, Inc., would be considered a condition precedent to the lessee's eligibility to lease a skybox and to be of a charitable nature, and therefore would not be included in calculating the value of a skybox seat provided to a legislator by a lobbyist or principal of a lobbyist who lobbies the Legislature. As long as the value of the skybox seat received by the legislator does not exceed $100, he or she could accept it and would have no disclosure requirement under Section 112.3148(8), Florida Statutes.
Where the fee for leasing a skybox at Florida State University's Doak S. Campbell Stadium is $20,000 annually and where $15,000 of that amount is allocated to the F.S.U. Foundation, Inc., a 501(c)(3) organization for purposes of the Internal Revenue Code, is that portion of the leasing fee considered to be a condition precedent to the lessee's eligibility to lease the skybox and to be of a charitable nature, which would not be included in determining the value of a skybox seat?
Based upon the specific factual representations made, your question is answered in the affirmative.
Through your letter of inquiry and the other information accompanying your request we are advised that you are seeking this opinion on behalf of Representative Jim King, a member of the Florida House of Representatives who also is a member of the Board of Directors of Seminole Boosters, Inc. This legislator has been invited by several lobbyists and principals of lobbyists who lobby the Legislature to sit in their skyboxes during football games at Florida State University's Doak S. Campbell Stadium. He questions whether he may accept these invitations without violating Section 112.3148, Florida Statutes.
Section 112.3148(4), Florida Statutes, provides:
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 or a lobbyist, if he knows or reasonably believes that the gift has a value in excess of $100; .... .
This provision would prohibit the legislator from accepting a gift, in this case a skybox seat during Florida State University football games, from lobbyists or principals of lobbyists who lobby the Legislature, where the value of the seat exceeds $100. It is the valuation of those skybox seats you have asked us to address.
Section 112.3148(7), Florida Statutes, provides:
(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. . . .
(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. . . . . [e.s.]
We have promulgated rules to implement these statutory provisions. Particularly relevant to the issue here is Rule 34-13.500(5)(c), Florida Administrative Code, which states:
Where a ticket to an event involves seating in a skybox, the actual annual cost of leasing the skybox is included in the value of the ticket to the event. The annual cost of the lease shall be divided by the number of persons which can be seated in the skybox, and further divided by either:
1. the number of events held annually at the stadium, if known; or
2. the number of events held during the preceding year. The provisions of this subsection may be illustrated by the following example:
EXAMPLE: Where the cost of leasing a skybox at a football stadium is $10,000 annually, where the skybox can seat 10 persons, where the stadium hosts five football games each year, and where a ticket to an event in the stadium costs $20, the value of a ticket for seating in the skybox for the event is $10,000 divided by 10 seats, divided by 5 games, plus $20 per ticket, or $220 per person. [e.s.]
Since seating in a skybox entails admission to the event, we have to determine the value, on a per event basis, of the admission in order to determine whether that value is greater than that shown on the face of the ticket. As Section 112.3148(7)(h), Florida Statutes, does not explain how to calculate the "per event basis," we look to the actual cost of leasing the skybox, which is the "actual cost to the donor" provided for in Section 112.3148(7)(a), Florida Statutes, and which is the example provided in the rule. Unstated in the rule but inherent in Section 112.3148(7)(a), is the concept that additional expenses required "as a condition precedent to eligibility to the donor to purchase or provide a gift" are not included in determining the value of the gift if the expenses are of a "charitable nature."
This element of the valuation section is addressed in our Rule 34-13.500(7), Florida Administrative Code, which states:
Where the donor is required to pay additional expenses as a condition precedent to being eligible to purchase or provide the gift, and where the expenses are for the primary benefit of the donor, or where the expenses are of a charitable nature, such expenses will not be included in determining the value of a gift provided to a donee. The provisions of this subsection may be illustrated by the following example:
EXAMPLE: Lobbyist G ("G"), who lobbies the agency of Reporting Individual Q ("Q"), is a member of a country club and is required to pay an annual membership fee of $1,000 to the country club. Where G takes Q to play a round of golf at the country club, the costs of G's annual membership is a condition precedent to G being a member of the country club and is primarily for G's benefit. Thus, the $1,000 annual membership fee is not included in the cost of the round of golf G provided to Q.
If the actual cost of leasing a skybox were determined to be $20,000 and it seats 20 persons during the 5 home games to be played in Tallahassee during 1994, then the value of each skybox seat would be $20,000 ) 20 ) 5 = $200. Because Section 112.3148(4) prohibits a reporting individual from accepting a gift from a lobbyist or principal of a lobbyist who lobbies his agency, where the value of the gift exceeds $100, the legislator would be prohibited from accepting the invitations to sit in the lobbyists' and principals' skyboxes because the value of the seat would be $200.
Alternatively, if the $15,000 which goes to the F.S.U. Foundation, Inc. was determined to be a condition precedent to the eligibility of the lessee to lease the skybox and to be of a charitable nature, then the value of each skybox seat would be $5,000 ) 20 ) 5 = $50. In that case, because the value of a seat in the skybox is less than $100, the legislator could accept it.
Examining the documents submitted along with your request, we cannot deny the fact that the F.S.U. Foundation, Inc. has been accorded tax-exempt status by the I.R.S. and that $15,000 of the $20,000 leasing fee goes to the Foundation. Further, it appears that that $15,000 is considered tax deductible as a charitable contribution. When not being used to observe home football games, the skybox facilities, we understand, are used for classroom space as well as student recruitment, career counseling, student orientation, and other University-related functions. It also appears that the Foundation and the University have implemented institutional controls to ensure that the non-game use of the skyboxes is consistent with the Foundation's educational, charitable purpose. Based upon these specific factual representations, we conclude that that portion of the skybox leasing fee paid to Seminole Boosters, Inc. and allocated to the Florida State University Foundation, Inc.'s Conference Facility Program would be considered a condition precedent to the lessee's eligibility to obtain a skybox at Doak S. Campbell Stadium and is of a sufficiently documented charitable nature. Therefore, that $15,000 portion of the leasing fee should not be included in determining the value of the gift provided to the legislator.
As the value of a skybox seat for one game would be less than $100, the legislator would not be prohibited from accepting it. Additionally, we would also point out that a seat given to family members of the legislator would be considered an indirect gift to the legislator and would be included in determining the value of the gift given to the legislator. As long as the total value of the gift does not exceed $100, the legislator could accept it and no reporting obligation would exist. However, the donor of the gift--the lobbyist or the principal of a lobbyist--should disclose the gift of the skybox seat on his Donor's Quarterly Gift Disclosure (CE Form 30) pursuant to Section 112.3148(5)(b), Florida Statutes. Additionally, a reporting requirement may also exist for the donor pursuant to Section 11.045, Florida Statutes.
Your question is answered accordingly.
F.S.U. generally has 6 home football games during even-numbered years when it plays the University of Florida at home in Tallahassee. However, in 1994, it will play the University of Notre Dame in Orlando. Hence, there will be 5 home games played in Tallahassee during 1994.