Florida Attorney General
Date: September 11, 2019
Subject: Audit exemption to extend discretionary sales surtax
Ms. Janette S. Knowlton
County Attorney for Charlotte County
18500 Murdock Circle, Suite 573
Port Charlotte, Florida 33948-1068
RE: DISCRETIONARY SALES SURTAX-PERFORMANCE AUDIT EXEMPTION-whether the duration of a discretionary sales surtax must be the same as the immediately preceding surtax to be exempt from the requirement of a new performance audit. S. 212.055(11)(d), Fla. Stat.
Dear Ms. Knowlton:
This office has received your request for an Attorney General opinion on behalf of the Charlotte County Board of County Commissioners asking essentially the following question regarding the local government infrastructure surtax authorized by section 212.055(2), Florida Statutes (2019):
You state that Charlotte County enacted a one percent discretionary sales surtax in 1998 pursuant to section 212.055(2), Florida Statutes, and has extended it multiple times. In 2014, voters approved a new surtax at one percent to apply through 2020 in the following ballot measure:
Question: Should the one percent local option sales tax be extended for six (6) years from January 1, 2015, to December 31, 2020, with the proceeds to be used for infrastructure as defined by law, including school security and technology improvements; road improvements; and public safety and service buildings; and libraries, parks and recreational facilities.
Section 212.055(11) provides that when a referendum is held to “adopt a discretionary sales surtax under this section,” the county must submit a copy of its proposed surtax to the Office of Program Policy Analysis and Government Accountability, which in turn must retain a certified public accountant to conduct a performance audit of the program associated with the surtax. No audit is required, however, when the following condition is met:
The duration of time during which taxpayers will pay a discretionary surtax is a material and relevant aspect of the surtax to be approved or rejected by voters. For example, in Florida Department of State v. Slough, 992 So. 2d 142 (Fla. 2008), the Florida Supreme Court found the ballot title and summary for a proposed constitutional amendment addressing certain ad valorem taxation issues to be fatally misleading because they omitted the one-year duration of the amendment. This omission could lead voters to believe that the surtax would be “permanent and continuous” rather than limited in time. Thus, a referendum proposing to extend the length of time taxpayers must pay a discretionary surtax would not be “the same” as the existing surtax which may expire sooner.
It is therefore my opinion that a local government is exempt from obtaining a performance audit pursuant to section 212.055(11)(d), Florida Statutes, when the discretionary sales surtax being voted upon is the same in all material respects as the prior surtax, which would encompass duration of the tax if such is included in the prior surtax.
 See also American Heritage Dictionary of the English Language (5th ed. 2018) (“[s]imilar in kind, quality, quantity, or degree”; “[c]onforming in every detail”).