The key question in the paid parking issue

The key question in the paid parking issue is whether the city’s “future only” interpretation is legally compelled by the word implement, or whether a court or other legal opinion could construe the ordinance in light of the charter’s purpose and voters’ intent.

A particularly important precedent has surfaced: the Florida Fourth DCA’s Wright v. Frankel says a city cannot defeat a citizens’ referendum merely because the city has already taken substantial steps toward the underlying project; the court emphasized that the voters’ reserved referendum power should not be abridged.

There is a potentially significant legal path here, and there is a Florida precedent more favorable to the citizens’ position than the City Attorney’s “one word — implement” analysis might suggest.

The most important distinction is this: the question of whether the voters have a right to decide the issue is different from the question of what legal effect the voters’ decision has after they decide it. The earlier Citizens Against Paid Parking (CAPP) injunction litigation apparently did not decide the latter question. The court dismissed that case as premature because the challenged implementation had not yet occurred. 

An authoritative legal interpretation or second opinion needs to be obtained, other than the City Attorney’s, preferably judicially, from either the Florida Attorney General or from the city’s outside legal counsel. This needs to be obtained prior to the August 18 election. While the Commission has the discretion concerning how it obtains legal advice, a municipal officer may request a Florida Attorney General opinion.  I can think of only one commissioner who might be willing to do that and that is the sole commissioner who voted against paid parking, Commissioner Aysue. 

There is a very strong legal precedent found in Wright v. Frankel. 

The Florida Fourth District Court of Appeal decided a case that is strikingly relevant in principle.

In Wright v. Frankel, 965 So. 2d 365 (Fla. 4th DCA 2007), West Palm Beach citizens used their charter’s initiative process to propose ordinances requiring voter approval before City Hall and the public library could be relocated. By the time the citizens sought judicial relief, the city had already taken substantial steps toward relocation. 

The city argued essentially that the referendum would be pointless because so much had already happened. (Sounds familiar.)

The Fourth DCA rejected that reasoning. It held that the fact that the city had already taken substantial steps did not justify denying the citizens their charter right to a referendum. The court emphasized that the people had reserved the power of referendum to themselves and that their right to govern themselves through that process should not be abridged. 

The court expressly relied on Brooks v. Watchtower Bible & Tract Society of Florida, Inc., 706 So. 2d 85 (Fla. 4th DCA 1998), in which citizens sought a referendum to repeal an ordinance authorizing a sale of city property. The court rejected the argument that the referendum should be blocked because the referendum might ultimately be futile because of the city’s contractual situation. (That definitely sounds familiar, especially the contractual part.) 

Wright’s holding is not exactly the same legal question as Fernandina’s present dispute. It does not say that an initiative automatically operates retroactively. But it is very important because it rejects the idea that a city’s actions already taken before the referendum automatically destroy or neutralize the citizens’ referendum right.

So there is substantial argument that: 

The City’s decision to implement paid parking after citizens had qualified an initiative does not itself determine the legal effect of the later voter-approved ordinance.

This is quite different from saying, as the City Attorney apparently does, that the word “implement” necessarily means the referendum can never affect the currently operating program.

The City’s “retroactive” argument is not necessarily as strong as it sounds. 

There is an important conceptual problem with saying that applying the referendum to the existing parking program would be “retroactive.”

Suppose the voters approve the initiative on August 18 and it becomes effective upon certification.

The city would not necessarily be imposing a new rule on something that happened in the past. It would be saying:

Beginning on the effective date, the City may not continue operating paid parking without voter approval.

That is prospective regulation of conduct occurring after the effective date, even though the program began earlier.

That is different from saying:

All parking fees collected before August 18 were unlawful and must be refunded.

The latter would plainly raise a retroactivity issue. The former does not necessarily do so.

That distinction is worth putting directly in front of a judge.

The actual language of the referendum gives some substantial arguments. 

The operative language is:

“The City of Fernandina Beach shall not implement paid parking in any designated area, defined as all areas within the City, without majority approval (50% plus one) vote from a public referendum of registered City voters.”

There are several things worth emphasizing.

First, it does not say:

“The City shall not implement any new paid parking program.”

It does not say:

“The City shall not expand paid parking.”

And it does not say:

“The City shall not implement paid parking in any additionalarea.”

Instead, it says “paid parking in any designated area,” with “designated area” defined as all areas within the City.

That wording can support an argument that the measure was intended to require voter approval for the City’s authority to operate paid parking at all.

Second, the initiative petition was filed while the City was pursuing the paid-parking program. The City knew there was a citizen initiative pending. The Commission subsequently rejected the initiative and proceeded with the program. Public records show the Commission’s October 21, 2025 consideration of Ordinance 2025-11 and the subsequent implementation of paid parking in February 2026. 

That chronology could be important evidence of the circumstances in which the language was drafted and presented to voters.

Section 141 of the City Charter itself may be even more important than the word “implement.”

The 2021 Charter revision created Section 141 specifically to give citizens the power to propose ordinances. It provides that registered voters can propose ordinances, and if the Commission does not adopt the proposal without substantive change, the voters may adopt or reject it at an election. Most importantly, once voters approve the initiative, the ordinance is considered adopted upon certification and is thereafter treated in all respects like an ordinance adopted by the Commission. It may thereafter be amended or repealed only by a supermajority of the Commission. 

That matters for two reasons:

First, the Commission cannot simply declare the vote meaningless. 

Once the voters approve an initiative, Section 141(f) says the ordinance is “considered adopted upon certification” and treated in the same manner as other ordinances. 

So the City’s legal obligation is not merely to acknowledge that voters took a symbolic vote. It has to give the resulting ordinance legal effect.

Second, unfortunately, the supermajority problem is real. 

The very same provision expressly says that an initiative ordinance may subsequently be amended or repealed by a supermajority voteof the Commission. 

However, while the Commission may have authority to repeal the voter-approved ordinance by the procedure authorized in Section 141(f), it does not necessarily have authority to reinterpret the ordinance so that the voters’ prohibition never applies to the existing paid-parking program in the first place.

(It should be mentioned here that review of the City Charter is coming up next year in 2027 and this Section 141(f) regarding the commission’s authority to repeal a voter-initiated ordinance might want to be reconsidered.)

There is as mentioned previous another route that is worth pursuing: 

A municipal officer may request a Florida Attorney General opinion.

Section 16.01(3), Florida Statutes, expressly authorizes the Attorney General, in his discretion, to provide an official written opinion to an officer of a municipality concerning a question of law relating to that officer’s official duties. 

So should the commission in its discretion fail to seek a second legal opinion, a Fernandina commissioner, or another qualifying municipal officer could submit a properly framed request to the state attorney general.

I can see no valid reason why the city commission would not seek a second or outside legal opinion, if they truly want to be sure of their actions post-election. While there are only two weeks until the August 18 election, this is a question of the utmost importance not just to the city but to the residents of Fernandina who ARE the city and it should be asked and answered. 

The question that might be asked is:

Under Florida law, may a municipality construe a voter-approved initiative ordinance prohibiting the implementation of paid parking as applying only to future implementations when the ordinance contains no express grandfathering or existing-program exception.

Also, we should not forget legal precedent has been set in Florida on this issue. There is an especially powerful argument based on what Wrightsays about citizens’ referendum rights. 

The language from Wright is worth paying attention to.

The Fourth DCA said that neither delay nor the possible consequences of the referendum could justify refusing to enforce the referendum process. It emphasized that the people had reserved the referendum power to themselves and that their legal right to govern themselves should not be abridged. 

There is a City Commission meeting tonight, August 4 at 6 p.m. I urge all citizens to attend and urge your city commission to get a second legal opinion. There is too much at stake to ignore this.

(The emphasis added by author.  ~Editor)