Mr. W. Timothy Weekley
General Counsel
Clerk the Circuit Court and Comptroller
Santa Rosa County, Florida
PO Box 472
Milton, Florida 32572
Dear Mr. Weekley:
On behalf of the Honorable Donald C. Spencer, Clerk of the Circuit Court and Comptroller for Santa Rosa County (“Clerk”), you ask substantially the following questions:
1. Under sections 28.246(6) and 938.29(3), Florida Statutes, are circuit court clerks authorized to sell to a debt purchaser court-ordered debts, which such clerk is obligated by statute to collect either outright, through a payment plan, or “by referring the account to a private attorney who is a member in good standing of The Florida Bar or collection agent who is registered and in good standing pursuant to chapter 559”?
2. If so, may a judgment debtor’s driver’s license be reinstated pursuant to section 322.245(5)(b)(1), Florida Statutes, following such sale of the debtor’s court-ordered financial obligation?
In sum
Section 28.246, Florida Statutes, obligates circuit court clerks (“clerks”) to collect court costs, fines, and other dispositional assessments. The statute further requires such clerks to refer to a private attorney or collection agent judgment-debtors who do not establish a payment plan or who do not remain current with their payment plans. The statute does not specify that selling the debt to a third-party debt collector is a means of disposing of the debt; therefore, the clerk is not authorized to fulfill the clerk’s statutory collection and disbursement obligations in that way. This conclusion makes it unnecessary to answer your second question.
Background
According to your correspondence, the Santa Rosa County Clerk’s Office has an in-house compliance department and utilizes collection agents, as authorized by section 28.246(6), Florida Statutes. Despite these efforts, “millions of dollars of debt remain outstanding.” The Clerk proposes to collect some payment towards these debts by selling longstanding financial obligations to a debt purchaser, thereby transferring the indebtedness to a third party. If such transfer is deemed authorized, you ask how this might affect certain debtor rights which, by statute, are dependent upon payment or other statutorily authorized resolution of these outstanding obligations.
Analysis
This office has previously stated that the clerk of the circuit court, although a constitutional officer, possesses only such powers as have been expressly, or by necessary implication, granted by statute.[1] Moreover, “[t]he clerk’s authority is entirely statutory, and his official action, to be binding upon others, must be in conformity with the statutes.”[2]
Section 28.246, Florida Statutes, specifies both the clerk’s obligations and authority to collect and disburse payments a person is obligated to make in accordance with court-ordered debts. The question, then, is whether section 28.246 authorizes the clerk to sell certain uncollected debts to third-party purchasers.
In State v. Peraza, the Florida Supreme Court stated that the “starting point for any statutory construction issue is the language of the statute itself—and a determination of whether that language plainly and unambiguously answers the question presented.”[3] The Court has also stated, “[t]he plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.”[4]
Here, section 28.246 plainly lays out both the clerk’s obligations and the clerk’s authority with respect to collection and disbursement of court-ordered debts. It also requires clerks to report certain information to the Legislature.[5] Section 28.246 states that clerks must “collect court costs, fines, and other dispositional assessments and disburse such in accordance with authorizations and procedures as established by general law.”[6] It contains requirements applicable to partial payments and payment plans.[7] Finally, section 28.246(6) mandates, in pertinent part:
A clerk of court shall pursue the collection of any fees, service charges, fines, court costs, and liens for the payment of attorney fees and costs pursuant to s. 938.29 which remain unpaid after 90 days by referring the account to a private attorney who is a member in good standing of The Florida Bar or collection agent who is registered and in good standing pursuant to chapter 559. In pursuing the collection of such unpaid financial obligations through a private attorney or collection agent, the clerk . . . must have attempted to collect the unpaid amount through a collection court, collections docket, or other collections process, if any, established by the court, find this to be cost-effective and follow any applicable procurement practices.
(Emphasis added.) The statute does not list the sale of such debts to a third-party purchaser as a permissible option.
You refer to section 938.29, which section 28.246(6) cross-references. Section 938.29(3) pertains to debts or liens imposed where a “defendant-recipient was tried or received the services of a public defender, special assistant public defender, office of criminal conflict and civil regional counsel, or appointed private legal counsel, or received due process services after being found indigent for costs.” It provides, in part, that the clerk of the circuit court “shall enforce, satisfy, compromise, settle, subordinate, release, or otherwise dispose of any debt or lien imposed under this section.” The only way that a clerk may accomplish such actions is through the specific provisions of section 28.246(6), which unambiguously apply to the “collection of any fees, service charges, fines, court costs, and liens for the payment of attorney fees and costs pursuant to s. 938.29.”[8] The phrase “or otherwise dispose,” as used in section 938.29, does not suggest that an outright sale of the specified debt is permissible under section 28.246(6).[9]
Conclusion
Based on the foregoing, it is my opinion that, unless and until legislatively or judicially determined otherwise, the Clerk must collect court costs, fines, and other dispositional assessments as specified in section 28.246, Florida Statutes. Because the methods enumerated in that section do not include the sale of such debts to a third-party debt purchaser, the Clerk lacks authority to fulfill applicable statutory collection and disbursement obligations in that manner.
Sincerely,
Ashley Moody
Attorney General
AM/ttlm
[1] See Ops. Att’y Gen. Fla. 2010-20 (2010); 95-33 (1995); 90-69 (1990); 90-42 (1990); 86-38 (1986); 80-93 (1980).
[2] Sec. Fin. Co. v. Gentry, 109 So. 220, 222 (Fla. 1926).
[3] 259 So. 3d 728, 730 (Fla. 2018).
[4] Conage v. United States, 346 So. 3d 594, 598 (Fla. 2022) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)).
[5] § 28.246(1), (3), Fla. Stat. (2022) (requiring reports of total amounts collected; amounts assessed and discharged or converted to community service, to a judgment or lien, or to time served; and collection rates for mandatory and discretionary assessments, among other information).
[6] § 28.246(3), Fla. Stat. (2022).
[7] § 28.246(4), Fla. Stat. (2022).
[8] “When the controlling law directs how a thing shall be done that is, in effect, a prohibition against its being done in any other way.” Alsop v. Pierce, 19 So. 2d 799, 805–06 (1944).
[9] Had the Legislature intended sale of the debt as an alternative, it likely would have been explicit in providing for it, rather than relying on the phrase “otherwise dispose” to encompass it. Cf. § 663.17(7), Fla. Stat. (2022) (stating, in pertinent part, that a licensed office of an international banking corporation may, “upon an order of a court of competent jurisdiction, sell, assign, compromise, or otherwise dispose of all bad or doubtful debts held by, and compromise claims against, such corporation, other than deposit claims.”) (emphasis added).