CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2001 WL 716857
...dered it a plus if a firm was owned and operated by a minority. Both parties agreed that the relevant statutes are section
255.20, in the chapter entitled "Public Property and Publicly *449 Owned Buildings," section
336.44, "County Road System," and section
336.41, which is referenced by section
336.44....
...As used in this section, the term "competitively award" means to award contracts based on the submission of sealed bids, proposals submitted in response to a request for proposal, proposals submitted in response to a request for qualifications, or proposals submitted for competitive negotiation. 336.41 Counties; employing labor and providing road equipment; definitions. (1) The commissioners may employ labor and provide equipment as may be necessary, except as provided in subsection (3), for constructing and opening of new roads or bridges and repair and maintenance of any existing roads and bridges....
...ll be let to contract to the lowest responsible bidder by competitive bid....
336.44 Counties; contracts for construction of roads; procedure; contractor's bond. (1) The commissioners shall let the work on roads out on contract, in accordance with s.
336.41(3). (2) Such contracts shall be let to the lowest competent bidder.... (3) Upon accepting a satisfactory bid, the commissioners shall enter into a contract with the party whose bid has been accepted. §§
255.20(1),
336.41(1), (3),
336.44(1)-(3), Fla.Stat. (1999). The plaintiffs contended that section
336.44, by reference to section
336.41(3), requires the County to let road construction contracts utilizing gas tax funds to "the lowest responsible bidder" and that the new procedure is contrary to this requirement as it excludes qualified bidders and makes responsibility a competitive factor....
...to authorize methods which are inconsistent with general law. Section
255.20, Florida Statutes, authorizes the award of contracts by a variety of methods, some of which would include the type *451 of short-listing procedure used here, while sections
336.41 and
336.44, which are specific to county road and bridge projects, require that the contract "be let to the lowest responsible bidder" and "to the lowest competent bidder," respectively....
CopyAgo (Fla. Att'y Gen. 1979).
Published | Florida Attorney General Reports
...under the Constitution and Ch. 77-165, Laws of Florida, may a board of county commissioners budget, appropriate, and expend such tax revenues for the repair and maintenance of existing roads and bridges, having in mind particularly the provisions of s. 336.41 (3), F....
...S., in pertinent part, requires the Auditor General to postaudit the accounts and records of the several boards of county commissioners. AS TO QUESTION 1: Question 1 concerns whether the repair and maintenance of existing roads and bridges, having in mind particularly the provisions of s. 336.41 (3), F....
...206.47 (7), F. S., the term means the creation or building of new roads [including bridges] and does not encompass . . . repair, or improvement of existing roads.' (Emphasis supplied.) Although that opinion did not pass upon any questions arising under s. 336.41 , F....
...S., the construction placed upon s. 9(c)(5), Art. XII, and s.
206.47 (7), F. S., and the rationale of the opinion apply with equal effect to question 1 relating to the repair and maintenance of existing roads and bridges under the cited constitutional and 1977 statutory provisions. Section
336.41 , F....
...77-165, Laws of Florida, authorizes the county commissioners to employ labor and provide equipment as may be necessary for constructing and opening of new roads and bridges and repair and maintenance of any existing roads and bridges, except as provided in subsection (3) of the section. Section 336.41 (3), as amended by Ch....
...the county may use its own forces to construct the project, notwithstanding the limitation of this subsection. Nothing in this section shall prevent the county from performing routine maintenance as authorized by law. In construing the provisions of s. 336.41 , F....
...I am, of course, not vested with any authority to declare any act of the Legislature unconstitutional, such determinations being the exclusive prerogative of the judicial branch of government under our constitutional scheme of government. However, s. 336.41 neither levies the second gas tax nor prescribes the disposition, distribution, or use of surplus second gas tax revenues....
...XII of the 1968 Revision of the State Constitution, and, insofar as is material to this opinion, the purposes for which the proceeds of the tax may be used are limited by s. 9(c)(5) to expenditures for the `construction of roads.' See also ss.
206.41 (4)(b),
206.45 (2), and
206.47 (7), F. S., and AGO 079-43. Section
336.41 (3) is a limitation on the power of the several counties to utilize county employees and equipment for the construction of new roads and bridges and repair and maintenance of existing roads and bridges; the section purports only to req...
...`to be performed utilizing the proceeds of the 80 percent portion of the surplus of the second gas tax' be let to contract by competitive bid, except in certain enumerated circumstances. Such legislative purpose is not only manifest in the terms of s. 336.41 but is made clear by the title of Ch. 77-165, Laws of Florida, providing that the act was `amending s. 336.41 , Florida Statutes; limiting the use of existing county forces in the construction of public roads.' While s. 336.41 (3) refers to the `80 percent portion of the surplus of the second gas tax' in terms of the letting of contracts by competitive bids, the disposition, distribution, and use of the second gas tax revenues in the constitutionally prescribed s...
...9(c) of Article XII of the 1968 Revised Constitution. On consideration of the foregoing, and on the assumption that the Legislature did not intend to enact an unconstitutional statute or one in conflict with or transgression of the organic law, I therefore conclude that s. 336.41 (3), F....
...S., does not anywise attempt to regulate the use of or the purposes or projects for which the surplus second gas tax revenues may lawfully be used, or authorized any diversion of such tax proceeds to any purposes not expressly and particularly authorized by s. 9(c), Art. XII. I have also considered whether s. 336.41 , F....
...McDonald,
66 Fla. 494 ,
63 So. 914 ; Sanders v. Howell,
73 Fla. 563 ,
74 So. 802 ; Town of Hallandale v. Broward County Kennel Club,
152 Fla. 266 ,
10 So.2d 810 . Generally, see also American Bakeries Co. v. Haines City,
180 So. 524 (Fla. 1938). In reading ss.
336.41 and
206.47 , F. S., it becomes clear that the former was not intended as a revision of the subject matter of the latter; nor is there such a positive and irreconcilable repugnancy between the two laws as to indicate clearly that s.
336.41 was intended to prescribe the only rule which should govern the case provided for. Further, there is a field in which the provisions of s.
206.47 , F. S., can and do operate lawfully without conflict with s.
336.41 , F. S. As indicated above, the two statutes deal with different subjects; s.
206.47 prescribes the disposition, distribution, and use of the surplus second gas tax revenues, whereas s.
336.41 limits the use of existing county forces in the construction of county roads. Thus, there is no irreconcilable conflict between these laws. I can find no evidence from a study of s.
336.41 , and the legislative history thereof, that the Legislature intended to abrogate, repeal, or modify the scheme for the disposition, distribution, and use of the surplus second gas tax revenue as laid out in s....
CopyAgo (Fla. Att'y Gen. 1983).
Published | Florida Attorney General Reports
...Rider: This is in response to your request for an opinion on substantially the following question: DOES THE 1980 AMENDMENT OF s 9(C)(5), ART. XII, STATE CONST., REMOVE THE FIVE PERCENT OR $50,000 CAP ON IN-HOUSE ROAD CONSTRUCTION AND RECONSTRUCTION ESTABLISHED BY s 336.41 (3)(b), F.S.? The second gas tax, originally levied by s 16, Art....
...The amendment to s 9(c)(5) thus changed the permitted uses of the surplus second gas tax funds such that those funds may now, when authorized by law, be used for road maintenance as well as for road acquisition and construction. See , AGO 82-55. You inquire as to the effect of this amendment on the provisions of s 336.41 (3)(b), F.S. Section 336.41 , F.S., as amended by s 37, Ch....
...However, if after proper advertising, no bids are received by a county for a specific project, the county may use its own forces to construct the project, notwithstanding the limitation of this subsection. Nothing in this section shall prevent the county from performing routine maintenance as authorized by law . (e.s.) Section 336.41 (3), F.S., constitutes a limitation on the power of a county to utilitize county employees and equipment for the construction and reconstruction of roads and bridges paid from the proceeds of the 80 percent portion of the surplus of th...
...g the 80 percent surplus accruing to that county under s 16, Art. IX, State Const. 1885; the remaining 80 percent surplus gas tax funds are to be advanced monthly, to the extent practicable, to the Department of Transportation for use in the county. Section 336.41 (3), F.S., does require that the construction and reconstruction of roads and bridges paid from such funds be let by competitive bid except in certain enumerated circumstances....
...and repair of drainage ditches and structures, mowing, bridge inspection and maintenance, pavement striping, litter cleanup, and such other similar activities of a minor scope as are necessary to maintain a safe and efficient transportation system.' Section 336.41 (3), however, includes within the terms `construction' and `reconstruction' such activities as resurfacing, full scale mineral seal coating, and major bridge and bridge system repairs....
...the mineral sealing of lengthly sections of roadway. Within the meaning of s. 9, Art. XII of the State Constitution, major resurfacing , widening, and reconstruction of roads shall be considered `construction .' (e.s.) Such activities specified in s
336.41 (3), F.S., even though generally falling within the definition of `periodic maintenance' provided in s
334.03 (26), would thus be subject to the limitations and restrictions of s
336.41 (3)....
...Fla., 1961) (where statute contains a definition of a word or phrase, that meaning must be ascribed to the word or phrase whenever repeated in the same statute unless a contrary intent clearly appears). Whether a particular project, however, constitutes `routine maintenance' and thus falls outside the scope of s
336.41 or is `construction' or `reconstruction' as those terms are used in s
336.41 (3) or as defined by s
334.03 (26) is a mixed question or law and fact which must be determined on a case by case basis. Prior to the adoption of the 1980 amendment to s 9(c)(5), Art. XII, State Const., this office had considered the relationship of s
336.41 , F.S., to s 9(c)(5)....
...XII, State Const., as amended, now expressly provides that surplus second gas tax proceeds may be used for the construction and maintenance of roads as provided by law, the 1980 amendment to this constitutional provision did not purport to amend or modify and existing statutory provision. Section 336.41 (3) operates as a limitation on the power of a county to utilize county employees and equipment for road and bridge construction and reconstruction when such road and bridge work is funded by the 80 percent portion of the surplus of the constitutional gas tax....
...XII, State Const., and thus the limitations contained therein placing a 5 percent or $50,000 cap on in-house road and bridge construction and reconstruction without competitive bids is still, in my opinion, in full force and effect. It should be noted, however, that s 336.41 (3) constitutes a limitation on the use of the 80 percent portion of the surplus of the constitutional gas tax; it does not apply to or otherwise control the use of other revenues by the county....
...Any limitation on the use of other state or local tax revenues for road maintenance must therefore be found elsewhere in the statutes. Accordingly, I am of the opinion that the 1980 amendment of s 9(c)(5), Art. XII, State Const., did not affect the limitations contained in s
336.41 (3), F.S., on in-house road and bridge construction and reconstruction by a county paid from the 80 percent portion of the surplus constitutional gas tax, and the 5 percent or $50,000 cap on in-house road and bridge construction and reconstruction contained in s
336.41 (3)(b) remains in full force and effect. Routine maintenance as that term is defined in s
334.03 (25), however, is not subject to the limitations of s
336.41 (3) and may be performed by a county utilizing its own equipment and employees....
