HomeMy WebLinkAboutopinion-3CITY OF MIAMI, FLORIDA
INTER -OFFICE MEMORANDUM
TO :
FROM :
Priscilla A. Thompson
City Clerk
Pete Chircut
Treasurer
DATE:
SUBJECT:
REFERENCES:
ENCLOSURES:
November 18, 2004
FILE :
Request for Legal Opinion
Waiver of Residence
Requirement.
Please find attached City Attorney's response to a Request for Legal Opinion for Waiver
of Residence Requirement for Member of Health Facilities Authority Board Dr. Keri Lee
Livingstone.
Please have Commissioner Johnny Winton appoint a new member for this Board as soon
as possible.
Thank you.
PC/mm
ON- n133$-
CITY OF MIAMI
CITY ATTORNEY'S OFFICE
MEMORANDUM
TO: Pete Chircut, Treasurer
Finance Departmen
FROM: Jorge L. Fernan
DATE:
RE:
November 12, 2004
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Request for Legal Opinion - Waiver of Residence Requirement for Member of
Health Facilities Authority Board
(MIA-0400008)
You have requested an opinion on substantially the following question:
CAN A MEMBER OF A BOARD, CREATED BY STATE LAW, SUCH AS THE
HEALTH FACILITIES AUTHORITY BOARD ("BOARD"), WHO HAS
RELOCATED TO A RESIDENCE OUTSIDE THE CITY OF MIAMI ("CITY"),
OBTAIN FROM THE CITY A WAIVER OF THE RESIDENCE REQUIREMENT?
Your question is answered in the negative. The requirement that a Board member be a
resident of the City is mandated by State law, and not City ordinance. Therefore, absent a
statutory exemption or waiver provision, the City may not contravene Florida law by issuing a
waiver of the residence requirement.
The Board is a creation of State law.1 A condition of serving on the Board is residence
within the City limits. Pursuant to statute, the City shall designate five (5) persons who are
residents as members of the Board.' The use of the term "shall" connotes a mandatory condition
rather than a permissive one. Therefore, if the City chooses to establish a Board, it must do so
only with members who are residents of the City. There are no other provisions in Chapter 154
allowing the City to exempt or waive the residential requirement.
In addition, the City Code requires notification to the City Clerk in the event a Board
member ceases to be a resident of the City.3 Subsequently, the City Clerk is to inform the City
Commission of the Board member's ineligibility to serve on the Board, prompting the removal
of the Board member.4 Accordingly, the vacancy created is to be filled by the City Commission.5
I See generally Chapter 154, F.S.
2 § 154.207(4), F.S. (2004). (Emphasis added).
3 § 2-884 (b), City Code.
4 Id.
Id.
Health Facilities Authority Board Res. Requirement November 12, 2004
Page 2 of 2
CONCLUSION
Because the Board is creature of the State, the City must abide by the residential
requirements imposed to -it by Florida law. In the absence of a statutory provision, the City may
not on its own, contravene State law by waiving the residence requirement. Instead, the City
Clerk must be notified pursuant to section 2-884 (b) of the City Code, to begin the process of
replacing the Board member no longer residing within City lints.
PREPARED BY: REVIEWED BY:
Assistant City Attorney
cc: Mayor and Members of the City Commission
Joe Arriola, City Manager
• Priscilla Thompson, City Clerk
Scott Simpson, Director
s
Rafael O. Diaz
Assistant City Attorney