From the Legal Hotline (877-NEWS-LAW)
Legal notice publishing requirements, foreign bank advertising and more in today’s Legal Hotline recap.
Q. We are working on a project with a partner in Central America where we have marketed to banks who have said they’d love to advertise with us however U.S. law prevents them from doing so. The banks are adamant that foreign banks cannot advertise in the U.S. media because that would violate the Securities Act of 1933, in particular Regulation S, which they say covers international banks, brokerages, exchanges, and securities offers and essentially prohibits all forms of solicitation of people in the United States. They note that a few banks do offer offshore services to Americans online and in print but this is allowed because they have a U.S. banking license. Can you please provide any direction on this? Can we accept advertising from foreign banks?
A. I reached out to a lawyer with expertise and basically they are telling me that it will depend on the type of services that the bank is marketing in the ad. Generally, if it is aimed at investors, then apparently the Securities Act might come into play but if it is for other items or products not regulated under that law, then it might not apply. I think if you want to know for sure you could provide the ad copy to an attorney well versed in the area.
Q. We ran a couple of stories recently about a substantial project that our local Community Redevelopment Agency has undertaken. The project was stopped after a local landscaper inquired why he wasn’t given a chance to bid on the project. The CRA has a full-time director and a full-time secretary, and a board of directors that are business people in the community who meet once a month. The city attorney sits in to advise the directors on their actions and he says approval and implementation of this project was an honest mistake. According to the mayor, no laws were broken, only policies. What is your take on this?
A. Unfortunately, the transparency requirements for bids received by city and county governments don’t necessarily apply to Florida CRAs so the mayor may be correct. I do know CRAs have been criticized for this very reason. See this article — https://www.jamesmadison.org/community-redevelopment-agencies-stifle-urban-development/
The article cites a 2016 report by a Miami-Dade County grand jury that found that the area’s CRAs, unlike general purpose governments, “are free to solicit a particular person or company to do a specific project without a competitive bidding process.” The article goes on to say—“Not surprisingly, business owners, community leaders, and developers make bid offers and deliver presentations highlighting the benefits their project could generate. Few independent neutral parties make presentations on the potential costs.”
In this case, while it appears that no law was broken, there apparently are internal policies in place for this CRA that were not followed. That could result in a rebid depending on the policy but at the very least highlighting this may prevent it from happening again.
Q. I have an application for a zoning legal ad that is required to publish two times. I publish two newspapers, one on the west side of the county and the other on the east side of the county. Here’s my question: can the legal ad run once in eastern paper and once in the western paper and fulfill the two times publication requirement? Or, does the ad have to run two times in the same publication?
A. I have not seen this before—where two different papers are used to meet the zoning notice requirements. Looking at the county zoning notice procedure in 125.66(4), the law refers to “a newspaper” and “the newspaper,” and does not seem to envision a joint publication.
I do know that in the case where one newspaper does not comply with Chapter 50, the AG has said you cannot compensate for the deficiency by publishing in another newspaper. Specifically, 1996-25 states “While joint publication in the two papers may adequately notify the citizens of Deerfield Beach, the Legislature has not provided a manner in which such an alliance may be accomplished to satisfy the requirements of sections 50.011 and 166.041, Florida Statutes.” So while this AG opinion facts are different (both papers here comply), it is still somewhat instructive.
My view is that running them in one paper would be safer in terms of compliance—even though the citizens would likely be better informed by running them in two.
Q. We have a question we were hoping you can help with related to legal ads that just popped up from our county attorney down here. Apparently the affidavit they are getting is from out of state, and the CA says we are required by law to have an affidavit notarized in Florida. Specifically, the CA points to s. 50.051, F.S., “proof of publication; form of uniform affidavit” where the uniform affidavit references “STATE OF FLORIDA, COUNTY OF ________.” Is the CA correct?
A. There appear to be two questions here: one relates to format, and the other to notary requirements. Regarding format, Florida law requires the affidavits to be in a particular form, and, in fact, as the CA notes, there is a uniform affidavit in the statute. I agree this should be generally followed.
The next question is what about the notary? That is, can the affidavit be notarized in the out-of-state office by an out-of-state notary? My take on this question is that while it is correct that the heading in the uniform affidavit refers to “STATE OF FLORIDA,” this is only a form which must be “substantially…follow[ed].” If the affidavit substantially conforms to the form and is otherwise legally valid, I do not see anything in the law that precludes it. In this case, the affidavit was notarized by an out-of-state notary (New Jersey) and, therefore, the affidavit heading must be changed to reflect that.
Further, a Florida affidavit executed by an out-of-state notary is acceptable in Florida. Specifically, section 92.50(2) states that “affidavits… required or authorized under the laws of [Florida] may be taken or administered in any other state…of the United States…. before any notary public… having a seal, in such state….provided, however, such officer or person is authorized under the laws of such state… to take or administer …affidavits.”
So I think, based on the above, the affidavit procedure you are using is sufficient for purposes of Chapter 50.
Q. I’m a reporter with the Arkansas Democrat-Gazette in Little Rock. I requested copies of some old (1999-2000) court records out of Alachua County and received an invoice of $128, or $1 per page. Given my lack of familiarity with your state’s Sunshine Law, can tell me whether these charges are justified?
A. Under the SL, state agencies can charge 15 cents per one-sided copy and also can impose a “special service charge for extensive use of clerical or supervisory labor.” In this case, however, we are dealing with court records as opposed to agency records. Most clerk of court websites have a fee schedule—you might check there to make sure you are being charged the correct amount for the type of document requested.
Q. Members of our special taxing district sometimes make public records requests to one or more service providers in order to research something before putting it on the agenda. I covered a recent special taxing district meeting and it seems that the service provider differentiates charges based on who is making the request. If the request is from the board, it provides free copies in electronic form in furtherance of “board unity.” On the other hand, if it’s determined the commissioner is asking for himself, the provider allows them to physically view the files but does not provide free copies. Any thoughts on this violating the Sunshine Law?
A. As I understand your question, the service provider considers itself obligated to provide records (related to the district contract) free of charge only if the request comes from a commissioner acting on behalf of the entire board as opposed to an individual commissioner request. I don’t believe anything in the SL prohibits charging the individual commissioner—he/she is not automatically entitled to free copies—unless, however, that is required under the contract.