From the Legal Hotline (1-877-NEWS-LAW)
Q. I have a question for you regarding the Sunshine Law and whether a meeting involving governmental officials can be kept private or if it is public.
It appears a town resident who is the wife of a major hotel operator in town is organizing a meeting, or roundtable discussion, at a different hotel regarding no-wake manatee boat speed zones in the town.
As far as we understand, the town’s harbor master is expected to attend, along with staff from the Florida Fish and Wildlife Conservation Commission, the sheriff’s office, U.S. Coast Guard Auxiliary, and potentially some state legislators.
The town’s Beach Anchorage Advisory Committee was informed of this meeting by the town’s harbormaster and committee members were told they could attend the meeting, though the committee chair said she believed the meeting might be “invitation-only” and a “closed meeting.” The chair then said the committee was invited, but she had to check.
Is there anything about this meeting which would allow town staff and the advisory committee to take part without it being a public meeting? Does the presence of state legislators and the FWC also make it a public meeting? Can the hotel close off the public from the meeting even if it is a public meeting?
A. In general, this appears to be a community forum/roundtable sponsored/organized by a private individual (wife of hotel operator) to discuss manatee no-wake zones. Here are answers to your specific questions:
Can town staff and the advisory committee take part without it being a public meeting?
Regarding town staff, the Sunshine Law applies to meetings of elected or appointed boards; it does not ordinarily apply to staff committees or meetings.
Regarding advisory boards created by public agencies, they may be subject to the SL, even though their recommendations are not binding upon the entities that create them. The “dispositive question” is whether the advisory committee/board has been delegated “decision-making authority,” as opposed to mere “information-gathering or fact-finding authority.” In this case, the Anchorage Advisory Committee ”advises staff and the town council on all issues pertaining to the town’s public mooring field.” They don’t, however, seem to have any decision-making authority. So, legally the AAC does not appear to be subject to the SL. That said, however, it appears that the AAC still tries to comply with the SL because they meet openly every month in council chambers.
So, even though they are technically not required to meet openly, the AAC nevertheless values open meetings. To that extent, I would think AAC members would be cautious about attending the closed no-wake zone roundtable. For example, what if the roundtable becomes a “common facilitator” (allowing AAC members to discuss ongoing business (like no wake zones))? Doesn’t that defeat the purpose that their open meetings?
Does the presence of state legislators and the FWC also make it a public meeting?
Regarding state legislators, any meeting of two or more legislators on legislative business must be open. But it appears that is not the case here, so I don’t think their attendance triggers the SL.
Regarding FWC commission members, I think they could attend the closed community forum/roundtable but, again, with the limitation that the roundtable cannot be used to facilitate discussions between themselves about ongoing FWC business.
Can the hotel close off the public from the meeting even if it is a public meeting?
I think the hotel has the right to close meetings or impose facility limits on its property, but that does not invalidate a public official’s responsibility under the SL that the meetings be “open to the public.” The AG advises public boards or commissions to avoid holding meetings at places where the public and the press are effectively excluded. AGO 96-55.
Q. Our town is considering starting their own municipal charter school. Would this municipal charter school operate under the same Sunshine Law and open records laws as the town and school district?
A. Section 1002.33(16)(b), F.S., provides that charter schools are subject to the Public Records Act and the Sunshine Law. These open government laws apply regardless of whether the charter school operates as a public or private entity. AGO 98-48. Further, the records and meetings of a not-for-profit corporation granted charter school status are subject to open government laws even though the charter school has not yet opened its doors to students. AGO 01-23. And see AGO 2010-14 (records of team created by charter school to review personnel decisions subject to SL).
Q. I manage our weekly paper’s legal notices. We run all notices in print as well as on our website and upload to floridapublicnotices.com. I’ve recently come across people who have googled their names and found them in notices of public sales that self-storage companies have placed with me. They’re asking for them to be removed. I’m wondering a couple of things:
- For notices of public sale under the Florida Self-Storage Facility Act (Fla. Stat. §§ 83.801–83.809), the statute requires the advertisement of the sale to be published in print, but the statute does not have an online requirement for these notices. There is no express requirement in §83.806 that the notice runs on a newspaper’s website or any other website for a fixed number of days. Is this your understanding as well?
- For governmental notices, the statutory minimum of online publication is for at least 90 days on the statewide site, and an archive requirement of 18 months. After that, notices may be removed.
All to say, it seems safe for me to not only remove the names of individuals finding their names on our website via notices of public sale, but it also seems as though they don’t need to be online in the first place, right?
A. I agree there is no requirement in §83.806 that the notice run on a newspaper’s website or any other website for a fixed number of days.
As for Chapter 50 (the general legal notice provision), section 50.0211 says that if a “governmental agency” publishes a “legal notice” in the print edition, it must also publish on the newspaper’s website. Since the storage unit notices are not technically published by a governmental agency, I think you could take down the storage unit notice if you wish to do that. However, keep in mind that newspapers are under attack in the Florida legislature by the storage unit association and IMHO I think taking down these notices does not help the legislative fight.
As for legal notices uploaded to floridapublicnotices.com, the law refers to all “legal notices,” not just those pertaining to governmental agencies. Such “legal notices” (which I think would include storage unit notices) must remain on the aggregate website and be searchable for the periods you mention.
Q. We have a client that would like to do inserts for cigars. I recall there being restrictions on tobacco advertising being related to age. We are a newspaper that is available by mail subscription and available at stores. We also are distributed at local schools. So, I’m pretty sure we can’t include tobacco advertising.
A . In Florida, advertising cigars is legal but is subject to several significant restrictions at both the federal and state levels primarily aimed at preventing underage use. In particular, advertising cigars in print or digital media must include an FDA-mandated health warning that occupies a certain percentage of the ad space and must also be formatted in a specific way. For example, cigar advertisements must include one of the six FDA-required warning statements. These warnings cover potential health risks such as cancers of the mouth, throat, and lung, heart disease, risks during pregnancy, and the addictive nature of nicotine. The full list of warning statements can be found on the FDA website and in the FDA document. These warnings must be rotated quarterly in advertisements according to an FDA-approved plan.