Ken Daniels, Rhett Bullard and Karen Hatton no longer can say operations are an umbrella to cover everything and the AGO opinions are just that “opinions”.

AGO 2010-29 July 13, 2010

Local option fuel tax revenues levied pursuant to section 336.025, Florida Statutes, may not be used to pay operational expenditures for storm drainage, street lighting, and traffic signalization. You state that operational expenditures include electricity and water service used to operate traffic signals, street lights, and storm water pumping stations.

Section 336.025, Florida Statutes, authorize the levy of local option fue taxes (LOFT) on motor fuel and diesel fuel for local transportation system projects (1) Fuel taxes levied pursuant to the statute, however, may be used by county and municipal governments “only for transportation expenditures”” (2) The statute defines “transportation expenditures” for purposes of the act as “

-Expenditures by the local government from local or state shared revenue sources, excluding expenditures of bond proceeds, for the following programs:

(a) Public transportation operations and maintenance

(b) Roadway and right-of way maintenance and equipment and structures used primarily for the storage and maintenance of such equipment

(c) Roadway and right-of-way drainage

(d) Street lighting

(e) traffic signs, traffic engineering, signalization and pavement markings

(f) Bridge maintenance and operation

(g) Debt service and current expenditures for transportation, capital projects in the foregoing program areas, including construction or reconstruction of roads and sidewalks (3) (e.s.)

When a statute enumerates the things upon which it operates, it is ordinarily construed as excluding from its operations all things not expressly mentioned (4) Thus, a listing of allowed expenditures for LOFT revenues precludes use of such revenues for any other purposes.

The statute clearly authorizes the use of LOFT revenues to fund programs that, among others, provide roadway and right-of-way- drainage, street lighting and traffic signalization.

While not applicable in this instance, section 336.025 (8) Florida Statutes, authorizes the governing body of a county with a population of 50,000 or less on April 1, 1992, or the governing body of a municipality within such a county to use local option fuel tax revenues to “fund infrastructure projects, if such projects are consistent with the local government’s approved comprehensive plan”. The paragraph further states “Except as provided in subsection (7), such funds shall not be used for the operational expense of any infrastructure.”

Thus, it would appear that the pervasive intent of section 336.025, Florida Statutes, s to provide a revenue source to fund certain operation and maintenance costs of such infrastructure. The legislature has used the term “maintenance” and “operation” separately. To interpret them to mean the same thing would mean that the legislature had enacted redundant, useless legislation. (5) The statute should be read such that each term is given its distinct meaning (6) The projects encompassing draining, street lighting and traffic signalization do not specifically state that the cost of their operation is included and would not. Therefore, be an authorized expenditure of LOFT funds. This office, however, has commented upon the use of the local option fuel tax revenues for the maintenance of a drainage system (7).

Had the Legislature wished to include the operational cost of street lighting, traffic signalization and storm drainage, it could easily have done so, as it has for bridges and public transportation. Until legislatively or judicially determined otherwise, therefore, it is my opinion that local option fuel tax revenues, levied pursuant to section 336.025, Florida Statutes, may not be used to pay for the operational cost for street lighting, traffic signals and storm drainage (8).

Accordingly, it is my opinion that proceeds from LOFT pursuant to section 336.025 (1) (a) Florida Statutes, may not be used to pay operational expenditures for storm drainage, street lighting and traffic signalization.

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