Arrestable Offenses / Crimes under Fla. Stat. 100.361
CopyCited 112 times | Published | Supreme Court of Florida | 15 Fla. L. Weekly Supp. 535, 1990 Fla. LEXIS 1339, 1990 WL 154237
...of elections from processing the petitions. Thornber v. Evans, Case No. 81-1532, Circuit Court for Okaloosa County. The court found that the petitions against Thornber and Franklin were filed within one month after they were elected, in violation of § 100.361(6), Fla....
CopyCited 19 times | Published | Supreme Court of Florida | 1993 WL 380207
...ve pursuant to the Tampa City Charter seeking to repeal a city ordinance through a city-wide vote. When the Committee obtained the requisite number of signatures, it submitted the petition to Krivanek to count and validate the signatures pursuant to section 100.361(d), Florida Statutes (1991)....
CopyCited 8 times | Published | Supreme Court of Florida
...Gen., and Sharyn L. Smith, Asst. Atty. Gen., Tallahassee, for intervenor. ALDERMAN, Justice. We have for review on direct appeal a final judgment in which the circuit court of Volusia County upheld the constitutionality of the Municipal Recall Law, section 100.361, Florida Statutes (1977), and found that the challenged municipal recall petition is legally sufficient....
...Lissenden Co. v. Board of County Commissioners,
116 So.2d 632 (Fla. 1959). Appellant Lillian Bent is a duly elected commissioner of the City of New Smyrna Beach. Appellee Stuart Ballantyne is the designated chairman of an unincorporated group organized under section
100.361 for the purpose of recalling Bent from office....
...in office," and alleges four specific grounds to support the charge. The petition was then filed with the city clerk and thereafter submitted to the county supervisor of elections who determined that the petition contained the signatures required by section 100.361(1)(a). The city clerk then prepared and delivered to Ballantyne the counterpart petition prescribed by section 100.361(1)(f)....
...The complaint alleged that the recall petition was unlawful because the grounds for removal stated in the petition, even if true, were insufficient as a matter of law to satisfy the statutory requirement of misfeasance, malfeasance, or incompetence. The complaint also challenged the constitutionality of section 100.361. Following a hearing, the circuit court entered a temporary injunction restraining the supervisor of elections from verifying the counterpart petition. The circuit court subsequently entered final judgment against Bent. It expressly found section 100.361 to be constitutional and held that, even though only ground two of the four grounds contained in the petition sufficiently set forth facts, which, if true, would constitute a ground for removal, this ground was sufficient to sustain the petition....
...*353 The facts alleged in ground two of the recall petition are not sufficient to establish a prima facie charge of malfeasance. Florida's recall statute is accusatory in nature and requires that a recall petition allege conduct by the public official which would constitute one of the seven grounds for removal listed in section 100.361(1)(b)....
...y charter. Accordingly, the final judgment of the circuit court is reversed, and the cause is remanded for proceedings consistent with this opinion. ADKINS, BOYD, OVERTON and HATCHETT, JJ., concur. ENGLAND, C.J., and SUNDBERG, J., dissent. NOTES [1] Section 100.361(1)(b), Fla....
CopyCited 8 times | Published | Florida 5th District Court of Appeal | 2006 WL 304565
...The recall was based upon a claim that Thompson had violated the terms of Florida's Sunshine Law. The complaint averred that the recall petition failed to set forth facts which, if true, would demonstrate malfeasance in office, and thus the petition failed to contain legal grounds for recall as set forth in section 100.361 of the Florida Statutes....
...tion of the statute to the facts of a particular case; the former may be raised for the first time on appeal, whereas the latter must first have been raised at the trial level). AFFIRMED. SAWAYA and MONACO, JJ., concur. NOTES [1] That statute reads: 100.361....
...to the following and must be contained in the petition: 1. Malfeasance; 2. Misfeasance; 3. Neglect of duty; 4. Drunkenness; 5. Incompetence; 6. Permanent inability to perform official duties; and 7. Conviction of a felony involving moral turpitude. § 100.361(1)(a), (b), Fla....
CopyCited 7 times | Published | Florida 3rd District Court of Appeal | 1996 WL 607973
...r of the initiative process. See id. In Abreau v. Cobb,
670 So.2d 1010 (Fla. 3d DCA 1996), cause dismissed, Case No. 88,081 (Fla. Dec. 11, 1996), a recall petition was challenged on the basis that it did not state grounds for removal in violation of section
100.361(1)(b), Florida Statutes (1995)....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal
...to recall appellant from his office as Lake Wales City Commissioner. The operative facts are simply stated. Several appellees caused to be filed with the City Clerk the following Petition for Recall in compliance with the Municipal Recall Statute § 100.361 (F.S....
...In addition, the court denied appellant's oral motion to strike subparagraphs (b) through (e) of the recall grounds, and dismissed the proceedings with prejudice. The court, properly we think, ruled that the allegations contained in subparagraph (a) constituted legally sufficient grounds for recall within § 100.361, supra. Under the statute, an allegation of "malfeasance" will support recall proceedings. § 100.361 (1) (b) (F.S....
...[1] Certainly where a city official violates an express prohibition in the City Charter such violation is a sufficient "illegal" act as to constitute "malfeasance" within contemplation of the statute. We agree with the trial court that subparagraph (a) thus sufficiently alleges "malfeasance" within the meaning of § 100.361(1)(b), supra....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 11 Fla. L. Weekly 2607
...There is absolutely no truth nor justification to any of the charges levied against me. Please show your support for my eight years of dedicated service to this community by not signing this petition. The Recall Committee obtained the necessary signatures and then pursuant to section 100.361 of the Florida Statutes (1985), notified the circuit court to set a date for a recall election....
...After a hearing, the trial court entered an order denying Moultrie's Motion and the recall election was scheduled for December 9, 1986. The issue is whether the trial court erred in not enjoining the recall election of Councilman Moultrie. We believe it did. Section 100.361(1)(b), Florida Statutes (1985), provides the grounds for the removal of an elected municipal official: (b) The grounds for removal of elected municipal officials shall, for the purposes of this act, be limited to the following: 1....
...2d DCA *996 1976); and Bent v. Ballantyne,
368 So.2d 351 (Fla. 1979). This court's sole function in the case at bar is to review the petition to determine whether the facts alleged in the recall petition are sufficient to establish any grounds for recall pursuant to section
100.361(1)(b)....
CopyCited 3 times | Published | Florida 1st District Court of Appeal
...Bagley,
418 So.2d 1156, Case No. AG-179, released this date, involve an attempt to recall members of the municipal government of Fort Walton Beach. Of relevance here is the fact that the trial court entered a temporary and then a final injunction halting the recall effort. Section
100.361(6), Florida Statutes (1979), provides: When petition may be filed Except as otherwise provided, no petition or recall of any member of the governing body of a municipality shall be filed until he has served 1/4 of his term of office......
...Accordingly, we find the argument without merit. We further note that appellee's brief argues at some length about the merits of the allegations in the recall petitions. The merits of the allegations are irrelevant to the issue on appeal. As for the merits, we find the provision of Section 100.361(7) to be straightforward and unambiguous. Accordingly, the decision of the trial judge is AFFIRMED. LARRY G. SMITH and THOMPSON, JJ., concur. NOTES [1] The argument focused on the "as otherwise provided" language of Section 100.361(6) and the language of Section 100.361(1)(b)....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 1992 WL 148222
...to the notice mailed pursuant to subsection (1) within 3 years from the date the last such notice was mailed to him, and such person shall be required to reregister to have his name restored to the registration books. The supervisor has a duty under Section 100.361(d), Florida Statutes, to determine whether the "petition contains the required valid signatures." The Supervisor maintains that she did not breach this duty when she rejected the 462 signatures because persons temporarily withdrawn from the rolls are no longer qualified voters....
...See §
98.081(2), Fla. Stat. In addition, TBT argues that Section
98.081(1) specifically states that it is not requiring reregistration, but is merely setting up a method for bookkeeping. Therefore, TBT argues that the Supervisor breached her duty pursuant to Section
100.361(d) and (h), Florida Statutes, to count the number of valid signatures on the petition....
...Eligibility to petition is prescribed by ordinance and statute. Section 10.07 of the Tampa City Charter provides that "qualified voters" may petition and that *532 the form and content of the petition shall be as provided for under the provision relating to recall of officers (§ 100.361(1), Fla. Stat.). Section 100.361, Florida Statutes, provides that "electors of a municipality" are eligible to sign the petition....
...ould be included in the count because they are "qualified voters;" [sic] however, the method of determining the number of signatures required is not before the court. B. ELECTORS WHO SIGN A PETITION PURSUANT TO § 10.07 OF THE TAMPA CITY CHARTER AND § 100.361, FLA....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 1996 WL 60838
...In December, 1994, District 7 residents who had voted for Ferre filed a declaratory judgment action to prohibit Harvey Ruvin, Clerk of the Courts, from certifying the latest petition based on the petition's filing within one year of the July petition [1] and the failure to contain grounds for the election as required under § 100.361(1)(b), Fla.Stat....
...-trial motions this appeal ensued. We agree with the appellants *1012 contention that the recall petition complied with the Dade County Charter. [3] Therefore, the court erred in finding that the petition was null and void for failure to comply with § 100.361(1)(b)....
...VIII, Fla. Const. 1885, carried forward by § 6(e), Art. VIII, Fla. Const. 1968. The opinion further stated that because of this constitutional provision, the terms of the Dade County charter relating to the recall of any commissioner would prevail over § 100.361. Similarly, Attorney General Opinion 079-38 concludes that § 100.361 Fla....
...NOTES [1] Section 7.02(7) of Art. 7 of the Dade County Charter states, "[n]o recall petition against such officer shall be certified within one (1) year after he takes office nor within one (1) year after a recall petition against him is defeated." [2] Section 100.361(1)(b) requires a recall petition to make a statement of the grounds for recall, and limits the grounds for removal to malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform official duties, and conviction of a felony involving moral turpitude....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2017 WL 1713311, 2017 Fla. App. LEXIS 6171
...Sanchez, etc., et al., appeal the trial court’s final
judgment concluding that the recall petition filed against appellee, Sweetwater
Mayor Orlando Lopez, did not state a valid ground for neglect of duty pursuant to
the City Charter. We agree with the trial court that the recall petition, filed
pursuant to section 100.361, Florida Statutes (2009), is legally insufficient as a
matter of law and therefore affirm the court’s final judgment.
Appellants sought the recall of the mayor on the grounds that he failed to
perform his duties as section 4.01(d)(10) of the City Charter requires....
...a, petition
the Sweetwater City Clerk to RECALL Mayor Orlando Lopez
pursuant to Section 7.01, Article VII of the Sweetwater City Charter,
which allows for all elected officials to be recalled and Florida
Statutes, section 100.361 which provides the procedure....
...not been available to respond to questions at all reasonable times. Florida’s recall
statute “requires that a recall petition allege conduct by the public official which
would constitute one of the seven grounds for removal,”2 as provided for in section
100.361(2)(d)....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 12 Fla. L. Weekly 1337
...The appellate court noted that the additional allegations "would likely surface during a campaign anyway." Id. at 92. The recall statute requires the approval of a petition by a substantial number of voters before a recall election may be scheduled pursuant to that petition. § 100.361, Fla....
CopyAgo (Fla. Att'y Gen. 1989).
Published | Florida Attorney General Reports
duties while serving a municipal purpose. Section
100.361, F.S., sets forth the statewide uniform recall
CopyAgo (Fla. Att'y Gen. 1982).
Published | Florida Attorney General Reports
...Edward Paul Kreiling City Attorney City of Miramar Post Office Box 3828 Miramar, Florida 33023 Dear Mr. Kreiling: This is in response to your request for an opinion on substantially the following questions: 1. IS THE MAYOR OF THE CITY OF MIRAMAR SUBJECT TO THE RECALL PROVISIONS OF s 100.361 , F.S.? 2. IF THE ANSWER TO THE FOREGOING QUESTION IS IN THE NEGATIVE, IS THERE ANY METHOD AVAILABLE FOR THE RECALL OF THE MAYOR? Question One Section 100.361 , F.S., sets forth with particularity the uniform statewide recall procedures for removal from office of any member of the governing body of a municipality or charter county. See , ss 100.361 (1)-(3), 100.361 (8) and 100.361 (9), F.S. Specifically, in pertinent part, s 100.361 (1), provides that `[a]ny member of the governing body of a municipality . . . may be removed from office by the electors of the municipality.' (e.s.) Pursuant to the above statutory language, it appears that the recall provisions of s 100.361 , are applicable only to a member of the governing body of, in this instance, a municipality and are not intended to encompass every category of elected municipal officials....
...74-130, Laws of Florida, which sets forth the act's purpose, in pertinent part, as `authorizing and providing procedures for the recall of any member of the governing body of a municipality . . . by the municipal . . . electors . . . .' See also , AGO 076-232, in which it was opined that s 100.361 appears to be limited in scope to recall only of members of the governing body of a municipality (or charter county). Based upon the above, it necessarily follows that the mayor at issue herein is subject to the recall provisions of s 100.361 , F.S., only if he is a constitutent member of the governing body of the municipality at issue herein....
...ber of the legislative department of city government, I am compelled to conclude that the Mayor of the City of Miramar does not constitute a member of the governing body of said municipality and is therefore not subject to the recall provisions of s 100.361 , F.S....
...Question Two Having determined that the mayor in this particular instance, and generally the mayor of any municipal government structured in such a manner that the mayor does not constitute a member of the governing body of the municipality, is not subject to the recall provisions of s 100.361 , F.S., it must next be determined if there is any other method available for recall. Section 100.361 (8), F.S., provides as follows: It is the intent of the Legislature that the recall procedures provided in this act shall be uniform statewide....
...ect matter of recall proceedings is regulated by the statute . However, the statute should not be read as a prohibition of municipal regulation of matters which are not regulated by the statute. See , AGO 075-119. A subject matter not regulated by s 100.361 is the recall of a mayor who does not constitute a member of the governing body of the municipality. It therefore would seem to follow that any charter provision or ordinance of the municipality providing a method or procedure for recall of such a mayor would not be contrary to or in conflict with the provisions of s 100.361 , which are silent in this regard....
...IV, State Const.; Part III, Ch. 112 , F.S., relating, inter alia , to the suspension and removal from office of elected municipal officers. In summary, a mayor who does not constitute a member of the governing body of a municipality is not subject to the recall provisions of s 100.361 , F.S., which apply only to a `member of the governing body.' However, the method, if any, provided in the charter or an ordinance of the municipality would be available for recall of a mayor not a member of the governing body since such a charter provision or ordinance would not be contrary to or in conflict with the provisions of s 100.361 , F.S., which are silent in this regard....
CopyPublished | Florida 1st District Court of Appeal | 1979 Fla. App. LEXIS 15085
...quisite percentage of qualified electors had signed the recall petition, the City Clerk had no power to purge a number of signatures at the signatories’ request, reducing their number below the required percentage of qualified electors. We affirm. Section 100.361, Florida Statutes (1977), prescribes the right of electors of a municipality to remove “any member of the governing body” by an election called in response to a recall petition charging statutory ground for removal and bearing, in the case of a city the size of Apalachicola, the signatures of 250 or ten percent of the registered electors, whichever, is greater. Such a petition was filed with the appellant City Clerk, as prescribed by Section 100.361(l)(d)....
...days, “whether the petition contains the required valid signatures.” If the petition does not contain the required signatures, the Clerk so certifies to the governing body — here the City Commission — “and the matter shall be at an end.” Section 100.361(l)(e)....
...Then, on Monday, December 11, the Clerk received 83 or 84 demands from signatories that their signatures be stricken from the petition, and she on December 11 notified the Commission that their signatures would be stricken, invalidating the petition for lack of the needed signatures. Subsection 100.361(l)(g) affords the opportunity to all petition signatories to “de *236 mand in writing that his name be stricken from the petition.” But the same subsection concludes: However, no signature may be stricken after the city auditor or...
...his Judgment will serve as notice to them that the requisite 15% of the electorate has validly signed the petition, and they are each given the opportunity, within five days of filing this Judgment, to submit a written resignation in accordance with Section 100.361(2)....
...orthwith fix a day for holding a recall election for such persons as shall not have resigned. By a lucid opinion, which we entirely approve though we do not set it out at length, the circuit court analyzed the detailed and interrelated provisions of Section 100.361 and found that the actions of the Clerk and Supervisor of Elections on December 6, 1978, put the recall petition beyond dissolution on December 11 through the Clerk’s striking of signatures....
CopyPublished | District Court of Appeal of Florida | 11 Fla. L. Weekly 1104, 1986 Fla. App. LEXIS 7782
...all. We affirm in part but remand for further proceedings. On June 12,1985, recall petitions seeking to recall appellants were served upon them. Upon receipt, appellants filed a petition asking the court to declare that the recall petitions violated section 100.361(l)(c), since the circulator affidavits required to be attached to the petitions were executed by a person other than the person who circulated the petitions....
...onsisting of copies of the circulator affidavits that form the basis of appellants’ argument that the petitions are invalid. At the hearing, appellee stipulated that the three circulator affidavits failed to comply with or meet the requirements of section 100.361(l)(c)....
...etitions for recall and counterparts thereto and that the same are hereby deemed valid ... .It is appellants’ position that the exhibits and stipulation before the trial court clearly established that the circulator affidavits were in violation of section 100.361(l)(c), since they were not signed by the actual circulator and, not being divisible, the recall petition should be declared invalid, making this a proper case for injunctive relief....
...1st DCA 1985), appellees assert that the general rule of construction is that if a portion of the document is illegal and if the illegal portion is eliminated, leaving a valid, viable instrument, the instrument will be allowed to stand. A careful reading of section 100.361 reveals that the validity of a recall petition depends on the allegations of the ground(s) for removal, section 100.361(l)(b), and the “required signatures,” section 100.361(l)(e) and (f). Also, the petition is composed of "counterparts,” each containing lines for signatures and an affidavit to be executed by the circulator. Section 100.361(l)(c). In that the emphasis is placed on the number of valid signatures, 100.361(l)(d), we conclude that, once invalid signatures are discarded, e.g., those contained in the invalid counterparts herein, the remaining counterparts could still contain the requisite number of signatures....
...ding that there were sufficient signatures was without evidentiary basis. A review of the record, transcript and memorandum from the parties reveals only the three circulator affidavits that were stipulated to by the parties as being in violation of section 100.361(l)(c), Florida Statutes, along with argument of counsel relating to the number of signatures on other circulator affidavits which were not presented or received into evidence....
CopyAgo (Fla. Att'y Gen. 1998).
Published | Florida Attorney General Reports
signatures on such petitions to four years.2 Section
100.361(1), Florida Statutes, which prescribes the
CopyPublished | District Court of Appeal of Florida | 14 Fla. L. Weekly 808, 1989 Fla. App. LEXIS 1635, 1989 WL 29029
...The authority to make such a determination is reserved solely to the Courts upon the application of an interested party. Neither Jividen nor the City of St. Petersburg is.such a party. State ex rel Landis v. Tedder, [
106 Fla. 140 ,
143 So. 148 (1932)]. The procedure for a municipal recall is contained in section
100.361, Florida Statutes (1987). A petition for recall must name the person sought to be recalled and include a statement of the grounds for recall in not more than 200 words. §
100.361(l)(a), Fla.Stat. (1987). The grounds for removal are limited to seven specific enumerated reasons. §
100.361(l)(b), Fla.Stat. (1987). The number of registered electors in the municipality determines the number of electors necessary to sign the recall petition. §
100.361(l)(a)l-6, Fla.Stat....
...n is filed, the city auditor or clerk, or his equivalent, shall submit such petition to the county supervisor of elections who shall, within a period of not more than 30 days, determine whether the petition contains the required valid signatures.... § 100.361(l)(c), Fla.Stat. (1987). If the petition does not contain the required signatures, the clerk certifies that fact to the governing body and files the petition without taking further action. § 100.361(l)(e), Fla.Stat. (1987). If the petition does contain the required signatures, the clerk serves the petition upon the official to whom the recall effort is directed. § 100.361(l)(f), Fla.Stat. (1987). That official is permitted to file a defensive statement. § 100.361(l)(f), Fla.Stat. (1987). The clerk then prepares counterparts of the recall petition with the statement of grounds for recall and defensive statements thereto and delivers them to the chairman of the recall committee. § 100.361(l)(f), Fla.Stat. (1987). Thereafter, the committee may circulate the counterparts to obtain the signatures of fifteen percent of the electors on the counterparts. § 100.361(l)(g), Fla.Stat. (1987). After these counterparts are filed with the city clerk, the clerk submits the counter *1278 parts to the supervisor of elections. § 100.361(l)(h), Fla.Stat. (1987) If the supervisor of elections’ final review reflects the counterparts contain at least fifteen percent of the qualified electors, the chief judge of the circuit shall fix a day for holding a recall election. §§ 100.361(l)(i) and (2), Fla.Stat....
CopyAgo (Fla. Att'y Gen. 1982).
Published | Florida Attorney General Reports
...City Attorney City of Miami 174 E. Flagler Street Miami, Florida 33131 Attention: Mr. Robert F. Clark, Deputy City Attorney Dear Mr. Knox: This is in response to a request from your office for an opinion on the following question: WHAT IS THE EFFECT OF THE LANGUAGE IN s 100.361 (8) AND (9), F.S., RELATING TO `UNIFORM STATEWIDE' MUNICIPAL RECALL PROCEDURES UPON THE CITY OF MIAMI, A SPECIAL CHARTER MUNICIPALITY WITHIN DADE COUNTY, WHOSE MUNICIPAL CHARTER CONTAINS DISSIMILAR RECALL PROCEDURES? According to the informat...
...ion where neither the provisions of Chapter 166 , F.S. nor other general laws applicable to municipalities directly impact upon the City of Miami Charter.' Your office, however, has expressed a willingness to recognize the overall applicability of s 100.361 , F.S., due in part to Art. VI, s 6, State Const., which states that registration and elections in municipalities shall be provided by law, and the provisions of s 100.361 (8), F.S., stating that it is the intent of the Legislature that the recall procedures provided within s 100.361 shall be uniform statewide....
...The Division of Elections of the Secretary of State's Office, which is charged with the administration and interpretation of the state election code, in response to a request from your office as to whether the recall procedures contained in the Miami City Charter take precedence over the procedures set forth in s 100.361 , referred your office to DE 078-48 wherein the division concluded that the provisions of s 100.361 were applicable to municipalities regardless of whether municipalities had adopted recall provisions. DE 078-48, however, was issued to a municipality located in a noncharter county and the issue as to whether a municipality located in Dade County would be subject to the provisions of s 100.361 was not considered therein. According to your letter, your office has been informed that the city clerk is presently following the procedures set forth in s 100.361 to the exclusion of the provisions in the Miami City Charter....
...See AGO 076-167 wherein this office concluded that as there is a constitutional provision (Art. VIII, s 11[1][g], State Const. 1885, carried forward by Art. VIII, s 6[e], State Const. 1968), prohibiting the Legislature from amending or repealing the charter of any municipality in Dade County, section 100.361 did not have the effect of amending or repealing any charter provision of a Dade County municipality relating to municipal recall....
...t only to a municipality in Dade County but also to one or more municipalities outside Dade County, such provision will prevail over a conflicting provision in a charter of a Dade County municipality. In addition, with regard to the instant inquiry, section 100.361 (8), F.S., expressly states that it is the intent of the Legislature that the recall procedures provided therein shall be uniform statewide and that all municipal charters and special law provisions which are contrary are repealed to the extent of such conflict. See also s 100.361 (9), F.S., stating that the provisions of s 100.361 are applicable to cities and charter counties which have adopted recall procedures. In view of the foregoing, I am of the opinion that the provisions of s 100.361 , F.S., are applicable to municipalities within Dade County and will prevail over any conflicting provisions in such municipalities' charters to the extent of the conflict....
CopyPublished | Florida 5th District Court of Appeal
...escalating COVID-19 outbreaks” but provided a specific description of the
procedures to be followed for any member of the public who wished to attend
or speak at the meeting.
Approximately twenty-three months after this meeting, Appellee, Craig
Oates, filed a petition under section 100.361, Florida Statutes (2022), to
recall Burton as city commissioner. The petition designated Oates as the
chair of the recall committee and alleged that at the aforementioned January
14, 2021 commission meeting, Burton committed an act of malfeasance
under section 100.361(2)(d)1., Florida Statutes, when she, the other city
commissioners, the mayor, and the city manager met “in private, behind
locked doors at ....
...In response to the recall petition, Burton promptly filed suit in circuit
court. She sought a declaratory judgment that the grounds alleged in the
2
recall petition did not constitute “malfeasance” under section 100.361(2)(d),
Florida Statutes, and that the recall petition to remove her from office was
thus legally insufficient. Burton also sought a judicial determination that
Oates, as recall committee chair, did not follow the statutory procedures
outlined in section 100.361 when he filed the recall petition directly with the
Putnam County Supervisor of Elections instead of the Clerk for the City of
Crescent City, thus rendering the petition invalid....
...In its written order, the court found that the recall petition was “legally
sufficient.” The court also found that while it was “clear” from the evidence
that a Ms. Karen Hayes “did and still does perform the duties of the ‘Crescent
City Clerk,’” it was nevertheless permissible under section 100.361 for Oates
3
to have filed the recall petition directly with the Putnam County Supervisor of
Elections, instead of Ms....
...For the following reasons, we reverse the order
denying Burton relief.
ANALYSIS
Burton first argues that the trial court erred in denying her relief
because, procedurally, Oates failed to comply with the requirement of
section 100.361, Florida Statutes, by failing to file the recall petition with the
Clerk of Crescent City. We agree.
Section 100.361 is succinctly titled “Municipal recall” and sets forth the
procedure by which a city commissioner of a municipality may be recalled
from office by the electors of the municipality....
... the committee; (4) the limited, enumerated grounds for the removal of an
elected official and the requirement that the grounds for recall be set forth in
the petition; and (5) the process of obtaining electors’ signatures on the recall
petition. See § 100.361(2)(a)–(e), Fla. Stat. (2022).
Subsection 100.361(2)(f) addresses the process of filing the recall
petition forms. Specifically, the chair of the recall committee “shall file the
signed petition forms with the auditor or clerk of the municipality . . . , or his
or her equivalent.” § 100.361(2)(f)....
...tes’s filing of the recall
petition with the Supervisor of Elections violated the plain language of the
statute. The trial court disagreed, explaining that filing the recall petition with
the County Supervisor of Elections was permissible under section
100.361(2)(f) because the statute was silent as to whether only one person
can serve as the municipality’s “auditor, clerk, or equivalent” and that
“common sense would say that there is no prohibition on multiple clerks.”
5
Thus, the issue before our court is one of statutory interpretation—
whether the trial court correctly interpreted section 100.361(2)(f) to permit a
County Supervisor of Elections to separately be the “equivalent” of the clerk
of a municipality in a recall election when there is an existing clerk of the
municipality....
...concern, and what they convey, in their context, is what the text means.”
Ham v. Portfolio Recovery Assocs., LLC,
308 So. 3d 942, 946 (Fla. 2020)
(quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation
of Legal Texts 56 (2012)).
Here, the plain text of section
100.361(2)(f) does not provide for
multiple persons to act as the auditor or clerk of the municipality....
...municipality and, if there is no clerk or auditor, with someone who is acting
as their “equivalent.” As found by the trial court, there was a clerk of the
municipality—Karen Hayes. Moreover, the Legislature set forth in section
6
100.361 very distinct and separate duties for the clerk of a municipality and
the County Supervisor of Elections in the recall election process. See §
100.361(2)(g), (3)....
...icipality during
a recall election, it could have easily, clearly done so. It did not.
We further reject Oates’s separate argument that the trial court’s order
should be affirmed because the recall committee substantially complied with
section
100.361 by filing the recall petition with the Supervisor of Elections.
First, section
100.361(2)(f) provides that the petition shall be filed with the
municipality’s auditor, clerk, or their equivalent. “Shall” is mandatory.
Sanders v. City of Orlando,
997 So. 2d 1089, 1095 (Fla. 2008) (citing Fla.
Bar v. Trazenfeld,
833 So. 2d 734, 738 (Fla. 2002)).
Second, section
100.361 contains no language that permits substantial
compliance with the statute....
...7
language ‘shall,’” and the Florida Legislature did not include either a
substantial compliance or a prejudice exception).
Accordingly, we hold that Oates failed to comply with the procedural
requirement of section 100.361 when he filed the signed recall petition with
the Putnam County Supervisor of Elections, instead of with Karen Hayes, the
Clerk of Crescent City.
We next address Burton’s claim that the trial court erred when it
determined that the recall petition was “legally sufficient.” Section
100.361(2)(d) provides seven enumerated grounds for the recall of an
elected municipal officer from office. The recall petition filed in this case
alleged that Burton had committed an act of “malfeasance” under section
100.361(2)(d)1.
Malfeasance is the “performance of a completely illegal or wrongful
act” by an elected official....
...with a specific procedure that allowed them, as members of the public, to
attend and be heard at the meeting.
11
Accordingly, we hold that the recall petition alleging that Burton
committed an act of malfeasance under section 100.361(2)(d) was legally
insufficient....
...2020-03 (2020)
(emphasis in original). The majority properly rejects Oates’s invitation to add
the phrase “in person” to the statute.
However, as to the recall effort’s procedural defect, unlike the majority,
I would not reach the issues of whether section 100.361, Florida Statutes
(2022), allows only one person to act as the clerk’s or auditor’s equivalent
and whether Karen Hayes is that person....
...Instead, I would hold only that the
county supervisor of elections cannot, under any circumstances, qualify.
That conclusion follows clearly from the statutory text and suffices to
adjudicate Burton’s procedural defect claim.
20
Section 100.361(2) provides that the recall committee chair “shall file
the signed petition forms with the auditor or clerk ....
...or his or her equivalent,”
and then directs that “[i]mmediately after the filing of the petition forms, the
clerk shall submit such forms to the county supervisor of elections” so the
supervisor may “promptly verify the signatures[.]” § 100.361(2)(f)–(g). The
statute goes on to allocate additional responsibilities between the clerk and
the supervisor. See generally § 100.361(2)–(4)....
CopyPublished | Supreme Court of Florida | 15 Fla. L. Weekly Supp. 75, 1990 Fla. LEXIS 274, 1990 WL 13583
McDonald, justice. We accepted In re Koretsky,
541 So.2d 1362 (Fla. 4th DCA 1989), for review because the court certified a question of great public importance: * Do the provisions of section
100.361 [Florida Statutes (1987) ] apply to a municipality which has adopted no provisions for recall elections? Id. at 1363 . We conclude, as did the Fourth District Court of Appeal, that it does not and quote the pertinent portion of that court's opinion: Section
100.361 contains a comprehensive scheme for the recall of municipal and charter county governing officials. Three (3) provisions of section
100.361 concern us here. Section
100.361(1) sets out the provisions governing a recall petition and provides that any member of the governing body of a municipality may be removed by recall. Section
100.361(8) states that it is the intent of the legislature that recall procedures be uniform statewide and that any municipal laws to the contrary stand repealed. Section
100.361(9) 1 is entitled “PROVISIONS APPLICABLE” and provides: The provisions of this act shall apply to cities and charter counties which have adopted recall provisions. We believe the plain meaning of subsection (9) is to limit the application of section
100.361 to cities and charter counties which have adopted recall provisions. Since it is undisputed in this case that the city of Pembroke Park has not adopted the provisions of section
100.361, we hold that there is no legal authority for a recall election in the city of Pembroke Park. 2 *25 Id. (emphasis in original). Each part of a legislative enactment is presumed to be included for a reason. Admittedly, on some occasions, the significance of a provision is not patently clear. The genesis of section
100.361 was chapter 74-130, Laws of Florida....
...isions. We therefore approve the decision under review. It is so ordered. EHRLICH, C.J., and OVERTON, BARKETT and KOGAN, JJ„ concur. GRIMES, J., dissents with an opinion in which SHAW, J., concurs. Art. V, § 3(b)(4), Fla. Const. The provisions of section 100.361 were originally enacted into law in three (3) separate sections, section 1....
...providing the effective date of the law. The parties have not cited, and, we are unaware of any caselaw directly on point. Cf. City of Laurel Hill v. Sanders,
392 So.2d 33 (Fla. 1st DCA 1980) (municipal provisions adopting election laws set out in chapter 100 include section
100.361). There are four (4) opinions of the attorney general and the division of elections on this issue, three opinions that section
100.361 applies to all cities, and one taking the view we adopt here....
CopyAgo (Fla. Att'y Gen. 1976).
Published | Florida Attorney General Reports
QUESTION: Are recalls of elected municipal officials governed by state statute or by city charter? SUMMARY: Provisions of municipal charters and special laws relating to recall in existence when Ch. 74-130, Laws of Florida (s. 100.361 , F. S.), took effect, and which conflicted with Ch. 74-130, were repealed to the extent of such conflict by s. 100.361 (10). The repealer clause of s. 100.361 (10) would not apply to special laws enacted subsequent to the effective date of Ch. 74-130. Section 100.361 appears to be limited in scope to recall only of members of the governing body of a municipality (or charter county). In 1974, the Legislature enacted Ch. 74-130, Laws of Florida, now codified as s. 100.361 , F. S., in order to provide uniform, statewide procedure for municipal recall. The expression of the intent of uniformity, and a repealer clause designed to effect such uniformity, are set forth in s. 100.361 (10): It is the intent of the legislature that the recall procedures provided in this act shall be uniform statewide....
...ating to recall which was in effect at the time Ch. 74-130 took effect, and which was in actual conflict with Ch. 74-130, was repealed as of the effective date of Ch. 74-130 (but only to the extent of such conflict). However, while the expression in s. 100.361 (10), supra, of legislative intent that recall provisions be uniform statewide is certainly clear, it is equally clear that such an expression does not bind subsequent legislatures....
...Funds v. St. Johns R. Co.,
16 Fla. 531 (Fla. 1878). Any special acts (such as those amending the Jacksonville charter) which may have been enacted subsequent to the effective date of Ch. 74-130, supra, would not be affected by the repealer clause in s.
100.361 (10) and would, of course, be entitled to the presumption of validity and constitutionality afforded any enactment of the Legislature. In addition, I would refer you to AGO 075-119, wherein I stated on p. 3 that the uniformity and preemption intent expressed in s.
100.361 (10) would be of effect only "insofar as the subject matter of recall proceedings is regulated by the statute." (Thus, municipal regulation by ordinance of recall-related matters not regulated by s.
100.361 — such as the providing of additional grounds for recall, as was the issue in AGO 075-119 — would not appear to be prohibited.) Finally, and perhaps most importantly, I would point out that s.
100.361 , supra, does not appear to have been intended to encompass every category of elected municipal official. Rather, the scope of the act would seem to be limited to the recall only of a member of the governing body of a municipality (or charter county). Section
100.361 (1) provides: Any member of the governing body of a municipality which has at least 500 registered electors or charter county, hereinafter referred to as municipality, may be removed from office by the electors of the municipality by the following procedure: Similar language is also present in the title to Ch....
...r of the governing body of a municipality or charter county by the municipal or charter county electors." In addition to the aforementioned AGO 075-119, I am also attaching copies of AGO's 075-242 and 075-83, which interpret other related aspects of s. 100.361 and which should be useful....
CopyPublished | District Court of Appeal of Florida | 1998 Fla. App. LEXIS 15980, 1998 WL 883951
...Malfeasance of office in that she urged council member Marion Kyser not to attend a council meeting so that a quo-ram would not be available. The trial court ruled that grounds 2, 3 and 4 were legally insufficient, but that grounds 1 and 5 were sufficient to premise a recall election pursuant to section 100.361, Florida Statutes (1997)....
...to the following and must be contained in the petition: 1. Malfeasance; 2. Misfeasance; 3. Neglect of duty; 4. Drunkenness; 5. Incompetence; 6. Permanent inability to perform official duties;' and 7. Conviction of a felony involving moral turpitude. § 100.361(1)(b), Fla....
...n. However, the failure to do so does not, in our view, invalidate the recall process and election. Garvin’s second, major argument on appeal is that the Supervisor of Elections did *1228 not properly certify the 15 percent petition for recall. In section 100.361, which governs the recall process, the Legislature has provided a mechanism for its execution which is specific in many regards but not so clear and specific in others....
...tona Beach Shores as of the last municipal election on September 30, 1997.” (emphasis added) Assuming there exist the maximum of 5,000 registered voters in Daytona Beach Shores (the most in the category in which this city is classified pursuant to section 100.361(l)(a)l.), 15 percent required to trigger the recall election would have been 750 electors....
...ified voters as of the date the 15 percent petition is certified. Absent specific statutory language to the contrary, we think the most logical reading is to say the voter pools referenced throughout the statute are the same — the one described in section 100.361(l)(a)....
...GRIFFIN, C.J., and THOMPSON, J., concur. . If all of the allegations in a recall petition are legally insufficient, the election should clearly be enjoined. See Bent v. Ballantyne,
368 So.2d 351 (Fla.1979); Taines v. Galvin,
279 So.2d 9 (Fla. 1973). . §
100.361(1)(a), Fla. Stat. . §
100.361(1)(a)(3), Fla. Stat. . §
100.361(1)(d), Fla. Stat. . §
100.361(1)©, (g), (h), Fla. Stat. . §
100.361(1)(h), Fla. Stat. . §
100.361(1)(h), Fla. Stat. . §
100.361(2), Fla. Stat. . §
100.361(l)(a), Fla. Stat. . §
100.361(1)©, (g), (h), Fla. Stat. . §
100.361(1)©, Fla....
CopyPublished | District Court of Appeal of Florida | 1980 Fla. App. LEXIS 18292
ROBERT P. SMITH, Jr., Judge. Laurel Hill appeals from a circuit court judgment granting a writ of mandamus to require processing of appellees’ petition for municipal recall election according to Section 100.361, Florida Statutes (1979). Both here and in the circuit court the case was presented on the erroneous assumption that the City of Laurel Hill has no provision by charter or ordinance to recall municipal officers, so raising the false issue of whether the Section 100.361 recall procedures made “uniform statewide” by subsection (9) apply to Laurel Hill even though subsection (10) seems to limit application of the uniform procedures to “cities and charter counties which have adopted recall provisi...
...“the provisions of the General Laws of the State of Florida pertaining to ... Municipal elections . . . . ” That language sufficiently references Chapter 100, Florida Statutes, entitled “General, Primary, Special, Bond, and Referendum *34 Elections,” and Section 100.361, entitled “Municipál recall,” to incorporate the latter’s recall procedures into Laurel Hill’s municipal law. The circuit court correctly ordered compliance with Section 100.361....
CopyPublished | District Court of Appeal of Florida | 1983 Fla. App. LEXIS 21770
ANSTEAD, Chief Judge. At issue is whether the provisions of section 100.361, Florida Statutes (1979), which relate to the recall of members of the governing body of any municipality or charter county, apply to governing officials of a drainage district established pursuant to chapter 298 Florida Statutes....
...As to the constitutional claim, we agree with appellants that they have a right to seek redress of their grievances against public officials. However, we *408 do not agree that they have a right to the specific remedy of recall. As to the applicability of section 100.361 1 we agree with the reasoning of the trial judge set out in her final order: 1. Sub-section 9 of Section 100.361, Florida Statutes, specifically states, “the provisions of this act shall apply to cities and chartered counties which have adopted recall provisions.” The Legislative intent is clear and unequivicable (sic) and there is no indica...
...ecall provisions and further, that Chapter 298, Laws of the State of Florida, did not have recall provisions of Drainage District Supervisors or Commissioners. Accordingly, the judgment of the trial court is affirmed. HURLEY and DELL, JJ., concur. . Section 100.361(1) provides: RECALL PETITION....
CopyAgo (Fla. Att'y Gen. 1980).
Published | Florida Attorney General Reports
...Adams Callaway City Attorney Apalachicola QESTIONS: 1. May a municipality legally expend public funds to institute and prosecute an action to test the legal sufficiency of allegations contained in a recall petition brought against an individual city commissioner pursuant to s. 100.361 , F.S., whether or not the subject allegations refer to acts or omissions committed in the performance of the commissioner's official duties? 2....
...perly and not in good faith expended for that purpose, any member of the governing body who voted to so expend the funds may be held personally liable for the expenditure. AS TO QUESTION 1: Municipal recall elections are provided for and governed by s. 100.361 , F....
...felony involving moral turpitude. It has been said that `Florida's recall statute is accusatory in nature and requires that a recall petition allege conduct by the public official which would constitute one of the seven grounds for removal listed in section 100.361 (1)(b).' (Emphasis supplied.) Bent v....
...ion ( see s. 2, Art. VIII, State Const.), their legislative powers are restricted in the area of matters preempted to the state by general law. See s.
166.021 (3)(c), F. S. In this regard I note that the Municipal Recall Law specifically provides in s.
100.361 (9), F. S., that the Legislature intends that the recall procedures provided for in s.
100.361 be uniform statewide....
CopyPublished | District Court of Appeal of Florida | 2016 Fla. App. LEXIS 5266
insufficient under Florida’s recall statute, section
100.361, Florida Statutes (2015), I. Billing itself
CopyPublished | District Court of Appeal of Florida | 14 Fla. L. Weekly 1064, 1989 Fla. App. LEXIS 2276, 1989 WL 43292
PER CURIAM. This is an appeal and an application for a constitutional stay writ concerning an or *1363 der scheduling an election and attendant proceedings for a recall election pursuant to section 100.361, Florida Statutes (1987). We grant the writ and reverse the order on appeal. At issue is whether the provisions of section 100.361 apply to a municipality that has no recall provisions in its charter or ordinances. We answer that question in the negative but certify the issue as one of great public importance so that the parties may seek further review in the Florida Supreme Court. Section 100.361 contains a comprehensive scheme for the recall of municipal and charter county governing officials. Three (3) provisions of section 100.361 concern us here. Section 100.361(1) sets out the provisions governing a recall petition and provides that any member of the governing body of a municipality may be removed by recall. Section 100.361(8) states that it is the intent of the legislature that recall procedures be uniform statewide and that any municipal laws to the contrary stand repealed. Section 100.361(9) 1 is entitled “PROVISIONS APPLICABLE” and provides: The provisions of this act shall apply to cities and charter counties which have adopted recall provisions. We believe the plain meaning of subsection (9) is to limit the application of section 100.361 to cities and charter counties which have adopted recall provisions. Since it is undisputed in this case that the city of Pembroke Park has not adopted any recall provisions, or otherwise adopted the provisions of section 100.361, we hold that there is no legal authority for a recall election in the city of Pembroke Park. 2 Because we believe this issue to be one of great public importance we hereby certify the following question to the Florida Supreme Court so that the parties may petition that court for further review: Do the provisions of section 100.361 apply to a municipality which has adopted no provisions for recall elections? ANSTEAD, GUNTHER and WARNER, JJ., concur. . The provisions of section 100.361 were originally enacted into law in three (3) separate sections, section 1....
...providing the effective date of the law. . The parties have not cited, and, we are unaware of any caselaw directly on point. Cf. City of Laurel Hill v. Sanders,
392 So.2d 33 (Fla. 1st DCA 1980) (municipal provisions adopting election laws set out in chapter 100 include section
100.361). There are four (4) opinions of the attorney general and the division of elections on this issue, three opinions that section
100.361 applies to all cities, and one taking the view we adopt here....
CopyPublished | Florida 3rd District Court of Appeal | 2001 Fla. App. LEXIS 5517, 2001 WL 417318
...atory and injunctive relief in connection with a recall petition. Finding that the recall petition is insufficient as a matter of law because, inter alia, it fails to identify the person designated as the chair of the recall committee as required by section 100.361(l)(a)(6), Florida Statutes (2000), we reverse and remand with di *1014 rections that the temporary injunction be entered pending further proceedings.
CopyAgo (Fla. Att'y Gen. 1979).
Published | Florida Attorney General Reports
Your question is answered in the affirmative. Section
100.361(1), F. S., provides, in relevant part:
