author: COBB, Judge.

text:
    James Earl RICHARDSON v. STATE of Alabama.
    CR-02-0225.
    Court of Criminal Appeals of Alabama.
    April 25, 2003.

      Robert Chandler Davis, Gadsden, for appellant.
    William H. Pryor, Jr., atty. gen., and Jean A. Therkelsen, asst. atty. gen., for appellee.
   COBB, Judge.

James Earl Richardson appeals from the trial court’s revocation of his probation. On November 1, 2000, pursuant to a negotiated agreement, Richardson pleaded guilty to discharging a firearm into an occupied vehicle, a violation of § 13A-11-61, Ala.Code 1975, and to criminal mischief in the second degree, a violation of § 13A-7-22, Ala.Code 1975. Richardson was sentenced as a habitual offender to 15 years’ imprisonment for the conviction for discharging a firearm into an occupied vehicle. He was sentenced to one year’s imprisonment for the conviction for criminal mischief. The trial court ordered that these sentences run concurrently. The trial court suspended the sentences and placed Richardson on five years’ probation.

On September 24, 2001, a delinquency petition was filed against Richardson. The report recommended that Richardson’s probation be revoked on the grounds that he had been charged with trafficking in cocaine and with the unlawful possession of drug paraphernalia. On October 29, 2002, a supplement to the delinquency report was filed, adding an additional ground for revocation. The supplement stated that Richardson had been charged with unlawful distribution of a controlled substance. After a hearing, the trial court revoked Richardson’s probation on October 30, 2002, finding that the State had proven the probation violations alleged in the petition.

On appeal, Richardson argues that the trial court’s order was inadequate because it did not specify the evidence relied upon in revoking his probation and that the trial court erroneously revoked his probation because, he says, the evidence was insufficient to support the revocation. Richardson argues that the only evidence presented at the revocation hearing was hearsay. He also argues that the evidence was insufficient because, he argues, the State did not adequately prove that a condition of probation was breached.

At the revocation hearing, the State presented one witness: Regina Gartman, a Gadsden police officer. With respect to the traffieking-in-cocaine and unlawful-possession-of-drug-paraphernalia charges, Officer Gartman testified that on September 7, 2001, a search warrant was executed at 119 Pinealice Street. Although Officer Gartman testified that she did not personally participate in the search of the residence and Richardson’s arrest, she narrated the allegations set forth in the report. Twenty eight grams of cocaine and drug paraphernalia were found in the residence. Officer Gartman testified that the cocaine was found underneath the refrigerator and in a purse found during the search. Richardson was present at the residence when the search warrant was executed, and he was one of the people arrested. Officer Gartman did not know who owned the residence.

To support the unlawful-distribution charge, Officer Gartman testified that on February 5, 2002, she gave a confidential informant some money and requested that he go to a house at 1309 Stroud Avenue and purchase cocaine. No testimony was presented as to who owned or resided at this residence. Officer Gartman testified that she watched the informant go into the house. Officer Gartman listened to the transaction via a transmitter worn by the informant. The transaction was recorded on an audiotape. When the informant left the house, he gave Officer Gartman the substance he had purchased, which was determined to be cocaine. Officer Gart-man testified that the informant told her that the person selling the cocaine was “Jamie” Richardson. Officer Gartman could not positively identify one of the voices on the audiotape as that of Richardson’s. The money used for the sale was not recovered. Richardson was not arrested until May 2002.

In Goodgain v. State, 755 So.2d 591, 592 (Ala.Crim.App.1999), this Court stated:

“It is well settled that hearsay evidence may not form the sole basis for revoking an individual’s probation. See Clayton v. State, 669 So.2d 220, 222 (Ala.Cr.App.1995); Chasteen v. State, 652 So.2d 319, 320 (Ala.Cr.App.1994); and Mallette v. State, 572 So.2d 1316, 1317 (Ala.Cr.App.1990). ‘The use of hearsay as the sole means of proving a violation of a condition of probation denies a probationer the right to confront and to cross-examine the persons originating information that forms the basis of the revocation.’ Clayton, 669 So.2d at 222.”

In this case, the only evidence indicating that Richardson had violated his probation by committing other crimes was Officer Gartman’s hearsay testimony. With respect to the distribution charge, the only evidence indicating that Richardson was involved in the sale was Officer Gartman’s testimony that the confidential informant told her that the person who sold him the cocaine was Richardson. With respect to the trafficking and unlawful-possession-of-drug paraphernalia charges, Officer Gartman’s testimony was based on assertions in a police report of which she had no independent knowledge. Officer Gartman’s testimony based on the police report was hearsay. See Ex parte J.J.D., Jr., 778 So.2d 240, 242 n. 2 (Ala.2000)(“[T]he only evidence presented by the State in support of the allegation that J.J.D. had received stolen property was hearsay testimony about the contents of the offense report related to that charge.”). Thus, the only evidence presented against Richardson in this hearing was hearsay. Because probation cannot be revoked solely upon hearsay evidence, the trial court erred when it revoked Richardson’s probation and the judgment in this case is due to be reversed.

Furthermore, this Court has stated:

“ ‘While it is not necessary that a probationer be convicted of the charged offense before his probation is revoked, it is nevertheless true that the filing of charges or an arrest, standing alone, is insufSeient ground for probation revocation. Nicholson v. State, 440 So.2d 1205 (Ala.Crim.App.1983); Free v. State, 392 So.2d 857 (Ala.Crim.App.1980), writ denied, Ex parte Free, 392 So.2d 859, cert. denied, 451 U.S. 990 [101 S.Ct. 2329, 68 L.Ed.2d 850], rehearing denied, 452 U.S. 973 [101 S.Ct. 3129, 69 L.Ed.2d 985] (1981).
“ ‘As this court has said:
“ ‘ “If merely being arrested is sufficient for revocation, then revocation would lie within the discretion of police officers, rather than judicial officers. In such a case, judges would only perform the ministerial duty of determining if an arrest had been made and then signing the revocation order. The decision to revoke probation is a judicial function and should be based upon the appellant’s conduct and not upon an accusation only. The State must submit enough substantive evidence to reasonably satisfy the trier of the facts that a condition of probation was breached.” Hill [v. State, 350 So.2d 716 (Ala.Cr.App.1977)].’ ”

Chasteen v. State, 652 So.2d 319, 320 (Ala.Crim.App.1994)(quoting Mitchell v. State, 462 So.2d 740, 742 (Ala.Crim.App.1984)).

While proof sufficient to support a criminal conviction is not required to support probation revocation, the State does have to present substantive evidence to reasonably satisfy the trial court that a condition of probation was breached. Ex parte J.J.D., Jr., supra. Here, Richardson did not actually possess the cocaine or drug paraphernalia. Therefore, the State had to present some evidence that Richardson had constructive possession of the cocaine or drug paraphernalia to reasonably satisfy the trial court that Richardson committed the drug-trafficking offense and/or the offense of unlawful possession of drug paraphernalia. The State had to show that Richardson had knowledge of the controlled substance and drug paraphernalia. Meeker v. State, 801 So.2d 850 (Ala.Crim.App.2001). Knowledge may be inferred from the accused’s exclusive possession, ownership, and control of the premises. Id. Where the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that he had knowledge of the contraband unless there are additional independent facts and circumstances that connect the defendant to the contraband. Id. This connection can be established by circumstantial evidence such as the following: (1) evidence that no other person could have possessed the contraband; (2) evidence that the defendant had substantial control over the particular place where the contraband was found; (3) a defendant’s oral admissions or conduct that evidences a consciousness of guilt; (4) evidence that debris from the contraband was found on the defendant’s person or with his or her personal effects; or (5) evidence that indicates that the defendant had either used the contraband shortly before his or her arrest or was under its influence. Id.

In this case, the State did not prove who owned the residence that was searched. Richardson was not in exclusive possession of the residence in which the contraband was found. The record reveals that several people were present at the time of the search. No testimony was presented indicating that Richardson admitted knowledge of the contraband or that he acted in a manner that evidenced a consciousness of guilt. No testimony established that there was contraband or debris from the contraband found on Richardson. No testimony was presented indicating that Richardson used the contraband shortly before his arrest or was under its influence. The only evidence linking Richardson to the contraband was his presence in the residence where the contraband was found. Therefore, the State failed to present any evidence, other than the fact Richardson was arrested, to reasonably satisfy a trier of fact that Richardson had committed the offenses for which he was arrested. Thus, even if Officer Gartman’s testimony about the search of the residence and Richardson’s subsequent arrest had not constituted hearsay, the evidence was insufficient, and the trial court erred when it revoked Richardson’s probation.

Finally, we note that the trial court’s order is deficient in that it lacks a written statement of the evidence relied upon and the reasons for revocation.

“ ‘In accordance with Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), and Wyatt v. State, 608 So.2d 762 (Ala.1992), before probation can be revoked, an Alabama trial court must provide a written order stating the evidence and the reasons relied upon to revoke probation.’ Trice v. State, 707 So.2d 294, 295 (Ala.Crim.App.1997). ‘These requirements offer the probationer some protection from an abuse of discretion by the trial court, aid an appellate court in reviewing a revocation, and prevent future revocations based on the same conduct.’ T.H.B. v. State, 649 So.2d 1323, 1324 (Ala.Cr.App.1994).”

Chenault v. State, 111 So.2d 314, 316-17 (Ala.Crim.App.2000).

Because the State failed to present any evidence other than the hearsay testimony of Officer Gartman indicating that Richardson had in fact committed the offenses, the trial court erred in revoking Richardson’s probation. Accordingly, the trial court’s order revoking Richardson’s probation is reversed and this cause is remanded for further proceedings.

REVERSED AND REMANDED.

McMILLAN, P.J., and SHAW and WISE, JJ„ concur; BASCHAB, J., concurs in part and dissents in part, without opinion.


source: Caselaw Access Project

author: PATTERSON, Retired Appellate Judge.

license: Public Domain

text:
    Steve HOFFMAN v. CITY OF MONTGOMERY.
    CR-01-2011.
    Court of Criminal Appeals of Alabama.
    April 25, 2003.
    Donald Gordon Madison, Montgomery, for appellant.
    Tara Robinson, Montgomery, for appel-lee.
   PATTERSON, Retired Appellate Judge.

Steve Hoffman appeals his misdemeanor conviction for menacing and his sentence of 30 days’ confinement. That sentence was suspended on the condition that Hoffman spend two weekends in jail. He was further ordered to pay $25 to the Alabama Crime Victims Compensation Fund and a fine of $500.

Hoffman contends that the trial court erred in denying his motion for a judgment of acquittal made at the close of the City’s evidence and again at the close of all the evidence on the ground that the City failed to prove a prima facie case of the offense of menacing. He further asserts that the trial court also erred in denying his “Amended Motion for Judgment of Acquittal after Verdict ...; or Alternatively, Motion for New Trial,” specifically, on the ground that the “verdict was contrary to the great weight of the evidence.”

The City’s evidence established that Darren Maull, the victim, had his disabled vehicle towed to a transmission repair shop, where Hoffman was employed. Maull testified that he and Hoffman agreed on a price for Hoffman to check the vehicle’s transmission; that, after Hoffman checked it, Maull could not have it repaired because he could not pay the estimated repair costs; that, when he and his cousin went to the shop to pay the charge agreed to for “pulling” his transmission and to have his vehicle towed from the premises, Hoffman told him he owed more (an amount Maull did not have), but refused to show him a bill; that, when he informed Hoffman that he did not have that amount of money, Hoffman told him to “get off his property” without getting his vehicle; and that Hoffman also told him that, if he did not get his vehicle that day, he could be charged more than triple the bill he had been presented with. Maull testified as follows:

“A. [Hoffman] constantly kept ... telling me you are going to leave my property, you need to get off my property. So I said, I am not going anywhere, you need to take my money and let me leave. He said, oh, you are going. Then he went in the drawer [of the desk he was standing behind]. He pulled a pistol out and he pointed it at me. So when he did that, ... that kind of scared me to the point of what are you doing. So I started walking out of the office easily....
“Q. How long did he have it pointed at you?
“A. It wasn’t long, because when he did it, I proceeded like going out of the office in fear. But the reason I was going out of the office was to let my cousin [who was standing outside the office door] know ... just in case, because I didn’t want to get shot or nothing. All I wanted was my car....
“Q. When the gun was pointed at you, ... [w]ere you scared?
“A. Yes.
“Q. At some point [were] the police called?
“A. I was encouraging him to call the cops.
“Q. When were the police called?
“A. He called the cops once I told my cousin that he pulled the gun. I was like standing right at the end of the office. He told me he was going to call the cops, and I told him to do it. So once he got on the phone with the 911 people, I felt safer then because he was talking to them.”

Maull further testified that he and his cousin then went outside and sat down; that Hoffman followed them after he finished his telephone call and told them again to leave; and that the police arrived shortly thereafter. The responding officer testified that, when he arrived at the scene, Maull was standing by his cousin’s truck, which his cousin had moved at Maull’s request off the transmission shop’s property; that Maull was calm; and that Hoffman did not want to talk to the officer, stating that he did not know why the officer was there because the dispute was a civil matter.

Hoffman testified that, before he looked at the transmission, Maull agreed to pay the higher charge; that the charge he quoted was the customary charge for that type of vehicle and included only one-half of the labor hours required to tear down a transmission; that he allowed Maull’s vehicle to remain on the premises without a storage fee for more than a month, longer than the three days usually permitted, so that Maull could attempt to get financing for the repair; that, when Maull angrily insisted that he accept less than the amount agreed to, he told Maull that he would lose his job if he accepted less; that, when he informed Maull that Maull could not take the vehicle without full payment, Maull cursed him in a loud voice; that he repeatedly asked Maull to calm down and to leave; that when Maull asked to see the paperwork, he opened his desk drawer and retrieved it from under an unloaded .25 caliber pistol, which had been in the drawer since he had started working there and which he used as a paperweight; that, when Maull saw the pistol, Maull “started ranting and raving”; that he never “pulled a gun” on Maull because he did not feel threatened by Maull; and that, although he briefly talked to the responding officer, he talked to another officer at the scene. On cross-examination, the following occurred:

“Q. At the very end [of the 911-call tape,] you said, I am protected, I have firearms.
“A. There was a shotgun in the back. There are always guns there. We have three or four hunters that actually work out of that shop. There was another firearm in the back office, my boss’s office.
“Q. When you told one operator you were protected, you had loaded weapons, correct?
“A. Not really loaded. Neither one of the guns were loaded....
“Q. [W]hy would you tell the 911 operator I am protected, I have firearms, if they are not working?
“A. [T]he only reason why I guess I would say there are firearms there is Mr. Maull before was actually saying, he has got a gun, he has got a gun, he has got a gun. You could still hear him in the background saying that, after I supposedly pulled it on him, which I never did.
“Q. Do you consider an unloaded gun protection, because that’s what you told the 911 operator, I am protected, I have got firearms?
“A. Not really.”

A fellow employee, who observed the entire incident from a few feet away, testified that he did not see Hoffman pull a weapon and point it at Maull. Another employee testified that he no longer worked at the transmission repair shop because he could not get along with Hoffman; that he heard “a bunch of hell raising,” so he went to investigate; that when Hoffman pulled a paper from a desk drawer, Maull “come running out of the office hollering at his buddy that he had pulled a pistol on him”; that he did not see any pistol pulled; and that the pistol was in Hoffman’s desk drawer because, that afternoon, Hoffman was to give the pistol back to the owner, who had offered to sell it to Hoffman.

Hoffman’s primary argument regarding the sufficiency of the evidence is his assertion that the City did not establish that Maull was actually placed in fear of imminent serious physical injury. He singles out Maull’s testimony that Hoffman “kind of scared [him].” In addition, he points out that Maull did not cite, as his reason for encouraging Hoffman to call the police, Hoffman’s pointing a gun at him. (Maull instead testified that he encouraged Hoffman to call the police because Hoffman had changed the price for “pulling” the transmission.) Before the trial court, Hoffman also emphasized the fact that Maull did not leave the premises:

“If [Maull] was in fear of his life, I would assume there would be some testimony that he ... got away from the premises. Or if he was suffering from some serious fear, his actions would have been more that just walking outside talking to his cousin and walking back into the office.”

Hoffman’s contention of insufficiency is based on his erroneous assumption that the prosecution is required to prove, as an element of the offense of menacing, that the offender’s action actually evoked, in the victim, fear of imminent serious physical injury. However, that assumption is erroneous. The offense of menacing is proscribed by § 13A-6-23(a), Ala. Code 1975, which states, “A person commits the crime of menacing if, by physical action, he intentionally places or attempts to place another person in fear of imminent serious physical injury.” Thus, the statute includes attempting to place the victim in fear of imminent serious physical injury. Am attempt, by definition, is unsuccessful, i.e., the actor failed at his objective, which in the case of menacing, is to harm by causing fear of imminent serious physical injury. Because § 13A-6-23 includes an attempt to place another in fear, actual subjective fear on the part of the victim is not a necessary element of menacing. See also 86 C.J.S. Threats and Unlawful Communications § 9 (1997) (“Actual subjective fear on the part of the victim is not a necessary element of the offense of menacing.” (Footnote omitted.)). Cf. Hayes v. State, 717 So.2d 30, 33 (Ala.Crim.App.1997) (the following statutory language of § 13A-6-90, proscribing stalking, does not require proof that the victim was actually placed in reasonable fear of death or serious bodily injury: “with the intent to place that person in reasonable fear of death or serious bodily harm”). See also the following cases reviewing statutes similar in pertinent part to the “attempt” provision of § 13A-6-23: People v. Stout, 193 Colo. 466, 568 P.2d 52 (1977); State v. Garcias, 296 Or. 688, 679 P.2d 1354 (1984).

Although the question whether the offender’s conduct evoked fear in the victim is relevant, the focus is on the offender’s culpability, his conduct, and his purpose — not the subjective perception or reaction of the victim. See, e.g., People v. Saltray, 969 P.2d 729 (Colo.App.1998) (because proper focus is on the intent and conduct of the actor and not the victim, it is unnecessary for the victim actually to be aware of any threat from the assailant); State v. Lockwood, 43 Or.App. 639, 642, 603 P.2d 1231, 1233 (1979) (because “[t]he victim’s subjective state of mind is not a defined element of the crime[; t]he victim’s testimony is not essential”). See also Parks v. United States, 627 A.2d 1, 6 (D.C.1993) (the court, in commenting on its definition of intent-to-frighten assault, held that “the victim need not be aware of the threatening act so long as an objective observer would perceive it as an immediate threat”); State v. Jeremiah, 546 A.2d 183, 187 (R.I.1988) (the court, in rejecting the argument that the victim’s actual fear of immediate injury was not an element of the definition of assault, stated that the prosecution need prove “only that the actions of the defendant were such that they would have created a well-founded fear or apprehension of an immediate injury on the part of a reasonable person who was confronted with the same or similar conduct,” thus recognizing that the “test is objective, using a reasonable person as the standard rather than the subjective reaction of the victim in a particular case”), abrogated on other ground, State v. Jackson, 752 A.2d 5 (R.I.2000). The focus on the conduct of the assailant rather than on the subjective reactions of the victim stems from an “ ‘appreciation of the wrongfulness of the criminal conduct involved.’ ” Parks v. United States, 627 A.2d at 5, quoting Anthony v. United States, 361 A.2d 202, 206 (D.C.1976). “ ‘The criminal law, designed as it is to protect public order, proscribes acts which increase “the potential for injury, and the tendency toward resistance, conflict, and violence.” ’ ” Id. (citation omitted in Parks).

Moreover, the evidence did in fact show that Maull was in fear of imminent serious physical injury. The testimony was to the effect that, when Hoffman pointed the gun at Maull, Maull “started walking out of the office easily ... in fear”; that he informed his cousin “just in case, because [he] didn’t want to get shot or nothing”; that he was scared when Hoffman pointed the pistol at him; and that he felt safer when Hoffman was talking, on the telephone, to the police. We find the following appropriate (even though it is in reference to a statutory requirement of proof of fear):

“[T]he requirement that the victim was put in fear by the defendant’s acts need not rest upon the victim’s characterizing him or herself as having been afraid. The fact that a victim showed courage at the time the offense was committed does not preclude a factfinder from concluding that the victim was placed ‘in fear’ by the defendant under the statute. Likewise, the fact that the victim does not manifest his or her fear by running from the scene does not establish that the victim was not placed in fear. A victim may still be both subjectively and objectively justified in being fearful of bodily injury.”

31A Am.Jur.2d Extortion, Blackmail, Etc. § 53 (2002) (footnotes omitted).

Hoffman further asserts that the City did not prove the element of criminal intent nor introduce evidence of motive, particularly in light of Hoffman’s testimony that he had no need to point a weapon at Maull because, as a large man (300 pounds in weight and six feet two inches in height), he did not feel physically threatened by Maull and, further, because he had summoned the police. First, we find that these contentions were not preserved for this court’s review. Hoffman argued to the trial court only the specific issue discussed above, i.e., the alleged lack of proof of Maull’s actual fear. “It is well established that a defendant who states specific grounds in his motion for a judgment for acquittal waives all grounds not stated.” Ex parte Hall, 843 So.2d 746, 747 (Ala.2002). See, e.g., Thomas v. State, 622 So.2d 415, 419 (Ala.Crim.App.1992).

Furthermore, and in the alternative, these contentions are without merit. The Commentary to § 13A-6-23 observes that the offense of menacing covers “[t]he classic example ... where defendant, intending to frighten another, points an unloaded gun at him, though not known by the victim to be so.” The City’s evidence established that Hoffman intentionally pointed the pistol at Maull. The evidence further established that Hoffman did so with the intent to place Maull in fear of imminent serious physical injury. The necessary element of intent can be inferred from his pointing of the gun. In regard to any burden to prove motive, we quote from authority also quoted by Hoffman: “Motive ... is not ... an essential element of a crime.” 22 C.J.S. Criminal Law § 34 (1989) (footnotes omitted).

Reviewing the City’s evidence in the light most favorable to the City, we find that a rational fact-finder could have found Hoffman guilty beyond a reasonable doubt. Accordingly, the trial court’s denial of Hoffman’s motion for a judgment of acquittal was proper. See generally Ingram v. State, [Ms. CR-01-2224, Feb. 28, 2003] — So.2d - (Ala.Crim.App.2003).

In regard to Hoffman’s contention that the trial court erred in denying his “Amended Motion for Judgment of Acquittal after Verdict ...; or Alternatively, Motion for New Trial,” specifically, the ground that the “verdict was contrary to the great weight of the evidence,” we reiterate the following:

“ “We have repeatedly held that it is not the province of this court to reweigh the evidence presented at trial.’ Whitt v. State, 733 So.2d 463, 470 (Ala.Crim.App.1998). ‘ “[T]he credibility of witnesses and the weight or probative force of testimony is for the jury to judge and determine.” ’ Harris v. State, 513 So.2d 79, 81 (Ala.Crim.App.1987), quoting Byrd v. State, 24 Ala.App. 451, 451, 136 So. 431, 431 (1931). ‘ “When the jury has passed on the credibility of evidence tending to establish the defendant’s guilt, this Court cannot disturb its finding.” ’ Rowell v. State, 647 So.2d 67, 69 (Ala.Crim.App.1994), quoting Collins v. State, 412 So.2d 845, 846 (Ala.Crim.App.1982). ‘Any issues regarding the weight and credibility of the evidence are not reviewable on appeal once the state has made a prima facie ease.’ Jones v. State, 719 So.2d 249, 255 (Ala.Crim.App.1996), aff'd, 719 So.2d 256 (Ala.1998).”

Clark v. State, [Ms. CR-99-1062, Feb. 28, 2003 ] — So.2d -, - (Ala.Crim.App.2000) (opinion on return to remand).

Accordingly, the judgment of the trial court is affirmed.

The foregoing opinion was prepared by Retired Appellate Judge John Patterson while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Ala.Code 1975.

AFFIRMED.

McMILLAN, P.J., and COBB, BASCHAB, SHAW, and WISE, JJ„ concur.

      . The prosecution of Hoffman for this crime was pursuant to a municipal ordinance that makes violations of misdemeanors under State law also municipal offenses if committed within the city limits or police jurisdiction of the municipality.

      . The definition of the intent-to-frighten assault used by the court in Parks v. United States, 627 A.2d 1, 5 (D.C.1993), quoting Robinson v. United States, 506 A.2d 572, 574 (D.C.1986), was, as follows:
      'Intent-to-frighten assault ... requires proof that the defendant intended either to cause injury or to create apprehension in the victim by engaging in some threatening conduct; an actual battery need not be attempted.’ ”
      (Citation omitted in Parks.)

      .The court, in State v. Jeremiah, 546 A.2d 183, 186 (R.I.1988), referred to the following definition, which had been stated in State v. Ashness, 461 A.2d 659, 665 (R.I.1983): "an 'unlawful attempt or offer, with force or violence, to do a corporal hurt to another ... [or to put] another in fear of violence.’ ’’


author: WISE, Judge.

text:
    B.B. v. STATE of Alabama.
    CR-01-2583.
    Court of Criminal Appeals of Alabama.
    April 25, 2003.

      Theresa Smith Dean, Opelika, for appellant.
    William H. Pryor, Jr., atty. gen., and Marc A. Starrett, asst. atty. gen., for ap-pellee.
   WISE, Judge.

The appellant, B.B., appeals from the judgment of the Lee County Juvenile Court, adjudicating him delinquent based on an underlying charge of harassment, a violation of § 13A-ll-8(a)(l)b., Ala.Code 1975. B.B. was placed on probation; this appeal followed.

The evidence tended to show the following. On December 4, 2001, B.B. became disruptive in his seventh-grade classroom. After repeatedly warning B.B. to discontinue his disruptive behavior, the teacher, Kerri Windham Kirkland, removed B.B. from the classroom. Kirkland went to the classroom of fellow teacher Alice Tadlock and asked Tadlock to watch her class while she escorted B.B. to the office of the principal, Barbara Mitchell. While Kirkland was talking with Tadlock, B.B. threatened Kirkland, saying in an angry voice “Kill you, kill you.”

After being escorted to Mitchell’s office, B.B. admitted threatening Kirkland, but explained to Mitchell that he did not really mean that he would kill her. Mitchell placed B.B. in an outer office where he continued his disruptive behavior by throwing a desk across the room, saying, “I hate that teacher, I hate that teacher.” When told by Mitchell that behavior of that nature would not be tolerated, B.B. responded that he did not care. As a result, police were called to the school and a written report was taken. On December 7, 2001, Mitchell signed the delinquency petition against B.B. based on his threats to Kirkland.

On September 5, 2002, the juvenile court conducted a hearing on Mitchell’s petition and adjudicated B.B. delinquent. During the hearing Kirkland testified that she felt threatened by B.B.’s comment. She stated that she felt she was in danger during the incident and feared that B.B. would grab her at any moment. Because of her fear, she said, Kirkland removed herself from the situation by going into her classroom to write up B.B.’s office referral, while B.B. remained in the hall. Kirkland stated that she walked B.B. to the office a short time later but that she avoided any further confrontation with him. She also testified that she found B.B.’s statement to be insulting and disrespectful. Tadlock testified that she was present when B.B. made the threatening comment to Kirkland. She stated that B.B.’s behavior caused her to be alarmed and concerned for Kirkland’s welfare. (R. 8.) Tadlock testified that she was afraid that B.B. would strike Kirkland because he appeared to be so angry.

On appeal, B.B. contends that the trial court erred in adjudicating him delinquent because, he argues, his comment to Kirkland did not constitute “fighting words,” as required for criminal liability under § 13A-ll-8(a)(l)b., Ala.Code 1975. In support of this contention, B.B. cites to Conkle v. State, 677 So.2d 1211 (Ala.Crim.App.1995), and Owens v. State, 848 So.2d 279 (Ala.Crim.App.2002).

Section 13A-ll-8(a)(l)b. provides, in pertinent part:

“(a)(1) Harassment. A person commits the crime of harassment if, with the intent to harass, annoy, or alarm another person, he or she either:
“b. Directs abusive or obscene language or makes an obscene gesture towards another person.”

Historically, this statute has been narrowly interpreted to apply only to those actions that, depending on the circumstances and context, constitute “fighting words.” Miller v. City of Fairhope, 855 So.2d 1139 (Ala.Crim.App.2003). See also Conkle v. State, 677 So.2d 1211 (Ala.Crim.App.1995); R.I.T. v. State, 675 So.2d 97 (Ala.Crim.App.1995); B.E.S. v. State, 629 So.2d 761 (Ala.Crim.App.1993). However, as this Court recently noted in Fallin v. City of Huntsville, 865 So.2d 473 (Ala.Crim.App.2003), nearly all of the cases in Alabama dealing with the “abusive or obscene language” provisions of § 13A-11-8 were authored before the 1996 amendment to the harassment statute, which added subsection (a)(2) to § 13A-11-8. Section 13A-ll-8(a)(2) provides: “[F]or purposes of this section, harassment shall include a threat, verbal or nonverbal, made with intent to carry out the threat, that would cause a reasonable person who is the target of the threat to fear for his or her safety.”

In Fallin, this Court held:

“In Conkle [v. State, 677 So.2d 1211 (Ala.Crim.App.1995) ], this Court, with Presiding Judge Taylor and Judge Long filing special concurrences, Judge Patterson concurring in the result, and Judge Cobb dissenting, stated that the words ‘I’m going to get you, little girl. You’re as good as dead,’ spoken by the appellant from his car as he drove past the complainant, did not constitute harassment. Conkle, 677 So.2d at 1213. However, that case was decided before the 1996 amendment of the harassment statute by the Alabama Legislature.
“Indeed, Judge McMillan, who authored the opinion of the Court in Conkle, stated, ‘under current law in Alabama, a verbal threat alone, in circumstances that would not cause public disorder or unrest by being likely to start a fight, does not constitute an offense.’ Conkle, 677 So.2d at 1219 (emphasis added [in Falling). Judge Long, in his special concurrence, stated:
“ T am troubled that our laws will countenance an intentional threat that places another person in reasonable fear for his or her safety. It seems peculiar to me that while our anti-stalking law recognizes the real harm caused by a credible threat when made in conjunction with repeated following or harassing behavior, there is no law comprehending the harm caused by a credible face-to-face threat standing alone. See § 13A-6-90 et seq., Ala.Code 1975. Even more peculiar, under § 13A-8-ll(b)(l), a communication by telephone or mail, made with the intent to alarm another person, is considered a criminal act. Thus, apparently it is illegal to threaten someone over the telephone, but perfectly legal to threaten to kill someone in person. This court, however, does not write the laws.’
677 So.2d at 1219. Judge Cobb, in her dissent in Conkle, wrote, ‘If, upon further review, the majority remains successful, then the question of affording our citizenry protection from substantial threats of violence should be addressed by the Alabama Legislature as has been done in other states.’ Conkle, 677 So.2d at 1220.
“We conclude that the Alabama Legislature, in enacting the 1996 amendment to the harassment statute, appears to have done exactly as several members of this Court in Conkle prevailed on it to do. The Alabama Supreme Court recognized this in Ex parte N.W., 748 So.2d 190, 193 (Ala.1999), as part of a discussion concerning whether harassment was a lesser offense to the offense of menacing. In a footnote, the Court stated:
“ ‘We note that there is some ambiguity as to whether § 13A-ll-8(a)(2) is merely a clarification of subsection (a)(1), requiring the prosecution to establish the elements of (a)(1), or is a completely separate definition of the offense, requiring only the establishment of the elements in (a)(2). Because only subsection (a)(1) contains the traditional language identifying the elements of a criminal offense — “A person commits the crime of harassment if ... ” — we adopt the former construction for the purposes of this appellate review.’
748 So.2d at 193 n. 3. Therefore, we hold that a person commits the crime of harassment if, with the intent to harass, annoy, or alarm another person, he or she strikes, shoves, kicks, or otherwise touches that person or subjects him or her to physical contact; directs abusive or obscene language or makes an obscene gesture towards that person; or makes a threat against that person, verbally or nonverbally, with the intent to carry out the threat, that would cause a reasonable person who is the target of the threat to fear for his or her safety. Thus, we conclude that, in certain situations — -i.e., where the words or actions are manifested in the form of a threat— a person may commit the crime of harassment even if the words do not rise to the level of ‘fighting words.’ ”

Fallin, 865 So.2d at 475-76.

Sadly, schools today have on occasion become lightning rods for violence. In light of the recent occurrences of school shootings, several jurisdictions have held that threatening comments made by a juvenile in a school setting did constitute harassment. See People ex rel J.P.L., 49 P.3d 1209, 1211 (Colo.Ct.App.2002)(statements made concerning a threat to “kill everybody” and references to killing students and teachers constituted harassment); State v. E.J.Y., 113 Wash.App. 940, 944, 55 P.3d 673, 675 (2002)(statements such as “go get my gun and do like Columbine” and other references to “Columbine” and “shooting” constituted harassment). In the instant case, B.B., a disruptive student, threatened to kill Kirkland, his teacher. Kirkland - testified that she felt “threatened” and “in danger” and that she removed herself from the area out of fear that B.B. would grab her. Another teacher described B.B. as being very angry during the incident. She testified that B.B. uttered the words “Kill you, kill you” to Kirkland through clenched teeth. The school principal testified that B.B. appeared to be very angry when he was brought to her office and that he threw a desk across the room stating, “I hate that teacher, I hate that teacher.” Here, as in Fallin, this Court is once again faced with the type of situation the Alabama Legislature contemplated when it drafted the 1996 amendment to § 13A-11-8. Although it is undisputed that B.B. made no attempt to strike or grab Kirkland, nor is there any evidence that B.B. had the means with which to act upon his threat, the evidence presented clearly satisfied the elements of harassment under § 13A-11-8.

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

McMILLAN, P.J., and COBB, BASCHAB, and SHAW, JJ., concur.

      . It appears that the victim married during the course of the proceedings and that certain portions of the record refer to Kirkland by her maiden name, Kerri Windham.

      . Fighting words have been interpreted to be " ' “personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction” Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 1785, 29 L.Ed.2d 284 (1971).’ ” South v. City of Mountain Brook, 688 So.2d 292, 295 (Ala.Crim.App.1996) (quoting B.E.S. v. State, 629 So.2d 761, 764 (Ala.Crim.App.1993)).

      . We note here, as we did in Fallin, that the fact that the complaint did not specifically list § 13A-ll-8(a)(2) as the statute being violated is not fatal because subsection (a)(2) is merely considered a clarification of subsection (a)(1) and does not set out a separate offense. See Ex parte N.W., 748 So.2d 190 (Ala.1999).


author: PER CURIAM.

text:
    STATE of Florida, Petitioner, v. Alphonso FLETCHER, Respondent.
    No. SC01-2750.
    Supreme Court of Florida.
    Aug. 28, 2003.
    Charles J. Crist, Jr., Attorney General, Celia Terenzio, Assistant Attorney General, Bureau Chief, and August A. Bonavita, Assistant Attorney General, West Palm Beach, FL, for Petitioner.
    Alphonso Fletcher, pro se, Raiford, FL, for Respondent.
   PER CURIAM.

We have for review the decision in Fletcher v. State, 800 So.2d 626 (Fla. 4th DCA 2001), which certified conflict with the decisions in Ray v. State, 772 So.2d 18 (Fla. 2d DCA 2000), review denied, 791 So.2d 1100 (Fla.2001), and Kwil v. State, 768 So.2d 502 (Fla. 2d DCA 2000). We have jurisdiction. See Art. V, § 3(b)(4), Fla. Const. We accept jurisdiction in this case, quash the decision of the Fourth District Court of Appeal, and remand for reconsideration in light of our decision in State v. Lemon, 825 So.2d 927 (Fla.2002).

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.


text:
    STATE of Florida, Petitioner, v. Jimmy Lee ROSS, Respondent.
    No. SC01-2456.
    Supreme Court of Florida.
    Aug. 28, 2003.

      Charles J. Crist, Jr., Attorney General, Celia Terenzio, Assistant Attorney General, Bureau Chief, and Donna M. Hoffman, Assistant Attorney General, West Palm Beach, FL, for Petitioner.
    Jimmy Lee Ross, pro se, Belle Glade, FL, for Respondent.
   PER CURIAM.

We have for review Ross v. State, 804 So.2d 359 (Fla. 4th DCA 2001), which expressly and directly conflicts with the decisions in Ray v. State, 772 So.2d 18 (Fla. 2d DCA 2000), review denied, 791 So.2d 1100 (Fla.2001), and Kwil v. State, 768 So.2d 502 (Fla. 2d DCA 2000). We have jurisdiction. See Art. V, § 3(b)(3), Fla. Const. We accept jurisdiction in this case, quash the decision of the Fourth District Court of Appeal, and remand for reconsideration in light of our decision in State v. Lemon, 825 So.2d 927 (Fla.2002).

It is so ordered.

ANSTEAD, C.J, and WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.


text:
    STATE of Florida, Petitioner, v. Adrian DAVIS, Respondent.
    No. SC01-1600.
    Supreme Court of Florida.
    Aug. 28, 2003.
    Charles J. Crist, Jr., Attorney General, Celia Terenzio, Assistant Attorney General, Bureau Chief, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, Florida, for Petitioner.
    No appearance, for Respondent.
   PER CURIAM.

We have for review the decision in Davis v. State, 791 So.2d 1137 (Fla. 4th DCA 2001), which certified conflict with the decisions in Ray v. State, 772 So.2d 18 (Fla. 2d DCA 2000), review denied, 791 So.2d 1100 (Fla.2001), and Kwil v. State, 768 So.2d 502 (Fla. 2d DCA 2000). We have jurisdiction. See Art. V, § 3(b)(4), Fla. Const. We accept jurisdiction in this case, quash the decision of the Fourth District Court of Appeal, and remand for reconsideration in light of our decision in State v. Lemon, 825 So.2d 927 (Fla.2002).

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.


author: CANTERO, J.

text:
    CITY OF GAINESVILLE, Appellant/Cross-Appellee, v. STATE of Florida, et al., Appellees/Cross-Appellants.
    No. SC02-1696.
    Supreme Court of Florida.
    Sept. 4, 2003.

      Marion J. Radson, City Attorney, and Elizabeth A. Waratuke, Litigation Attorney, City of Gainesville, Gainesville, FL; and Steven L. Brannock of Holland & Knight LLP, Tampa, FL, for Appellant/Cross-Appellee.
    William P. Cervone, State Attorney, and Lee C. Libby, Assistant State Attorney, Eighth Judicial Circuit, Gainesville, FL; and Pamela S. Leslie, General Counsel, and Marianne A. Trussell, Deputy General Counsel, Department of Transportation, Tallahassee, FL, for Appellees/Cross-Ap-pellants.

      James R. English, City Attorney, and Linda R. Hurst, Assistant City Attorney, Tallahassee, FL, for City of Tallahassee, Florida, Amicus Curiae.
    Harry Morrison, Jr. and Rebecca A. O’Hara, Tallahassee, FL, for Florida League of Cities, Inc., Amicus Curiae.
    Alan S. Zimmet and Elita D. Cobbs, Clearwater, FL, for City of Largo, Florida, Amicus Curiae.
    Erin L. Deady, Miami, FL; and C. Allen Watts and Ty Harris of Cobb & Cole, Daytona Beach, FL, for Florida Stormwa-ter Association, Inc., Earthjustice, Inc., Audubon of Florida, Inc., and Environmental Confederation of Southwest Florida, Inc., Amici Curiae.
   CANTERO, J.

The City of Gainesville appeals a circuit court order dismissing its complaint, which sought validation of a proposed bond issue. We have jurisdiction. See art. V, § 3(b)(2), Fla. Const. The issue is whether the City’s stormwater fees constitute a user fee, which are authorized under Florida Statutes, or a special assessment, which generally may not be charged to state agencies. The issue is relevant to the bond validation because the City pledged the stormwater fees as collateral for the bonds. Thus, if the fees are invalid, the bonds cannot be approved. See, e.g., Keys Citizens for Responsible Gov’t, Inc. v. Florida Keys Aqueduct Auth, 795 So.2d 940, 947 (Fla.2001) (noting that where the municipality’s fees are tied to the financing agreement on which the bonds will be secured, the validity of the fees are part of the court’s inquiry into whether the public body has the authority to issue the bonds). For the reasons stated below, we find that the stormwater fees constitute valid user fees. Therefore, we reverse the order and remand with directions to enter a judgment validating the bonds.

I. FACTS

Stormwater runoff may cause flooding and threatens water quality in urban areas. See § 403.031(16), Fla. Stat. (2002) (noting that the objective of a stormwater management system is to prevent or reduce flooding and pollution). Therefore, stormwater must be collected, conveyed, treated, and disposed of. Florida law requires local governments to establish stormwater management programs. § 163.3202(2)(d), Fla. Stat. (2002); § 403.0891, Fla. Stat. (2002). To fund such programs, local governments may “[cjreate one or more stormwater utilities and adopt stormwater utility fees sufficient to plan, construct, operate, and maintain stormwater management systems set out in the local program required pursuant to s. 403.0891(3).” § 403.0893(1), Fla. Stat. (2002). A stormwater utility is defined as

the funding of a stormwater management program by assessing the cost of the program to the beneficiaries based on their relative contribution to its need. It is operated as a typical utility which bills services regularly, similar to water and wastewater services.

§ 403.031(17), Fla. Stat. (2002).

The City created a stormwater utility. It based the rate structure for the utility fee on the “impervious area” of land. Impervious area means that part of the land through which stormwater cannot permeate, thus creating stormwater runoff. The vast majority of stormwater utilities across the country establish their rate structures by measuring impervious area.

Instead of calculating the exact amount of impervious area on each residential parcel, the City used statistical estimates. The most common unit that stormwater utilities use to measure impervious area is the Equivalent Residential Unit (ERU). An ERU is generally established as the average or median impervious area of a single-family home. In this case, the City determined that the median single-family property in the City included 2300 square feet of impervious area. Based on this calculation, the City established 2300 square feet as one ERU. It then created three classes of users and assigned different ERUs to each class. Most single-family properties are assigned one ERU. The City found that the impervious area of multi-family residential units was generally lower than for single-family homes. It therefore assigned .6 ERUs for apartments and mobile homes and 1.0 ERU for condominiums and duplexes.

For nonresidential properties, the City measured each property individually (over 3000 total) and assigned an ERU value to each. The ERU value is determined by measuring the square footage of impervious area on the property and dividing by 2300.

Under the City’s rate structure, properties that do not use the stormwater system — that is, that retain all stormwater on-site — are not charged a fee. For example, the City does not impose the fee on undeveloped properties because they contain no impervious area. Also, the University of Florida campus drains into a lake for which the University provides all stormwater management services.

The City charges the fees on a monthly basis. It uses the revenue generated exclusively for stormwater management services. Gainesville, Fla., Code art. V, § 27-242. Delinquent charges may be referred to a collection agency, or to the city attorney. Id. The Code does not permit placement of a lien on property to collect delinquent charges.

The Department of Transportation (DOT) refused to pay the City’s stormwa-ter fees, arguing that it was exempt from such charges because the fees constituted either a tax or a special assessment. The City filed a complaint seeking a judgment declaring that the stormwater fees constituted valid user fees and not special assessments, and claiming damages for unpaid fees. The circuit court dismissed the complaint on the DOT’S motion, ruling as a matter of law that the City’s stormwater fees constituted a special assessment. The First District Court of Appeal reversed. In a thorough opinion, the court held that the City’s ordinance, “if it operates as the City has alleged” — that is, if it assesses the cost of the program to the beneficiaries based on their relative contribution to its need and operates as a typical utility which bills services regularly — “imposes utility service fees rather than special assessments.” City of Gainesville v. State Dep’t of Transp., 778 So.2d 519, 527 (Fla. 1st DCA 2001). The City, however, did not pursue that litigation and eventually filed a voluntary dismissal.

The issue of DOT’S obligation to pay the stormwater fees arose again in 2001, when the City Commission approved issuance of revenue bonds to fund capital improvements to the stormwater system. Revenues from the stormwater fees will pay for the bonds. The City filed a complaint under section 75.04, Florida Statutes (2001), seeking to validate its proposed bond issue. The State and the DOT opposed validation. The DOT again argued that the stormwater fees were invalid — or at least did not apply to state agencies— because they constituted a tax or special assessment. All parties agreed that the only impediment to issuing the bonds was the validity of the underlying ordinance.

The circuit court held an evidentiary hearing. The court dismissed the complaint, finding that the City’s fee was not based on the amount of stormwater a customer contributes to the system and that the fee was not voluntary. The court concluded that “the City of Gainesville does not have the authority to incur the obligations which are the subject of this action.” The court denied the City’s motion for rehearing and clarification. This appeal follows.

II. SCOPE AND STANDARD OF REVIEW

We have previously explained the scope of a bond validation proceeding: “[C]ourts should: (1) determine if a public body has the authority to issue the subject bonds; (2) determine if the purpose of the obligation is legal; and (3) ensure that the authorization of the obligation complies with the requirements of law.” State v. City of Port Orange, 650 So.2d 1, 2 (Fla.1994). “Subsumed within the inquiry as to whether the public body has the authority to issue the subject bond is the legality of the financing agreement upon which the bond is secured.” Id. at 3. In this case, the stormwater fees are pledged to repay the bonds. The validity of those fees is the only issue. We review the trial court’s findings of fact for substantial competent evidence and its conclusions of law de novo. City of Boca Raton v. State, 595 So.2d 25, 31 (Fla.1992) (upholding trial court findings that were based on competent substantial evidence); Panama City Beach Cmty. Redev. Agency v. State, 831 So.2d 662, 665 (Fla.2002) (“It is clear that this Court’s review of the trial court’s conclusions of law is de novo.”).

III. ANALYSIS

To determine the legality of the financing agreement we must address two issues: (A) whether the City’s fee is a user fee or a special assessment; and (B) the propriety of the City’s fee structure. We address these issues in turn.

A. User Fee or Special Assessment?

DOT does not argue that the stormwater fees constitute a tax. Therefore, in determining the validity of the bonds, we must decide whether the City’s stormwater fee constitutes a user fee or a special assessment. If the stormwater fee is a user fee, the fee is valid and the State and DOT, as beneficiaries of the system, can be charged. If the fee is a special assessment, however, the State and DOT cannot be assessed the fee absent statutory authorization. See City of Gainesville, 778 So.2d at 521-22 (noting that state agencies may not be charged special assessments absent a statute specially authorizing special assessments on state property) (quoting Blake v. City of Tampa, 115 Fla. 348, 156 So. 97, 99 (1934)).

We acknowledge that under the authorizing statute a municipality may fund its stormwater management system either through the use of user fees or through special assessments. See generally § 403.0893, Fla. Stat. (2002). However, when a municipality chooses to fund its stormwater management system through special assessments, it does so pursuant to section 403.0893(3) and therefore does not technically establish a stormwater utility. Compare § 403.0893(1) (authorizing the creation of a stormwater utility and the imposition of stormwater utility fees), with § 403.0893(3) (authorizing special assessments to fund a stormwater management system). Although section 403.0893(3), Florida Statutes, authorizes special assessments, the City has not followed the required procedures under that section. Rather, the City has established a storm-water utility under section 403.0893(1) and has imposed utility fees. Therefore, the stormwater fees are only legal if they constitute user fees.

We have previously recognized that user fees and special assessments are similar. See Collier County v. State, 733 So.2d 1012, 1018-19 (Fla.1999). We have defined user fees as

charges based upon the proprietary right of the governing body permitting the use of the instrumentality involved. Such fees share common traits that distinguish them from taxes: they are charged in exchange for a particular governmental service which benefits the party paying the fee in a manner not shared by other members of society, and they are paid by choice, in that the party paying the fee has the option of not utilizing the governmental service and thereby avoiding the charge.

City of Port Orange, 650 So.2d at 3 (citations omitted). Similarly, special assessments are “charge[s] assessed against [the] property of some particular locality because that property derives some special benefit [from] the expenditure of [the] money.” Workman Enters., Inc. v. Hernando County, 790 So.2d 598, 599 (Fla. 5th DCA 2001) (quoting Atlantic Coast Line R.R. Co. v. City of Gainesville, 83 Fla. 275, 91 So. 118, 121 (1922)).

As the First District noted in the related case, “[t]he boundary between special assessments and user fees is not always clear.” City of Gainesville, 778 So.2d at 526. One leading authority has explained the difference between user fees and special assessments as follows:

In determining whether a charge for connecting property with the municipal water service is a “fee” or an “assessment,” the name given to the charge is not controlling; it is the reason for the charge which controls its nature, and if it is a charge made for the improvement of a certain piece of property, it is an assessment. Similarly, charges for connection to or the use of a sewer generally are not deemed taxes.
There is no bright-line test for distinguishing between a connection/use fee and a special assessment; generally, a “fee” is exchanged for a service rendered or a benefit conferred, and some reasonable relationship exists between the amount of the fee and the value of the service or benefit, while a “special assessment” is a specific levy designed to recover the costs of improvements that confer local and peculiar benefits upon property within a defined area. “User fees” are those which are charged only to the person actually using the service, and the amount of the charge generally is related to the actual goods or services provided and is a monthly charge rather than a one-time charge.

70C Am.Jur.2d, Special or Local Assessments § 2, at 631-32 (2000) (footnotes omitted), quoted in City of Gainesville, 778 So.2d at 526.

We therefore consider various factors in determining whether the storm-water fees in this case constitute a user fee or a special assessment. These include: the name given to the charge; the relationship between the amount of the fee and the value of the service or benefit; whether the fee is charged only to users of the service or is charged to all residents of a given area; whether the fee is voluntary— that is, whether a property owner may avoid the fee by refusing the service; whether the fee is a monthly charge or a one-time charge; whether the fee is charged to recover the costs of improvements to a defined area or infrastructure or for the routine provision of a service; whether the fee is for a traditional utility service; and whether the fee is statutorily authorized as a fee. None of these factors is controlling; nor are they necessarily exclusive. Rather, we must consider each factor in light of the circumstances as a whole in each particular case.

In this case, considering all the circumstances, we conclude that the stormwater fees constitute a user fee, not a special assessment. The City itself calls the fee a user fee, which is not dispositive but is relevant. Moreover, the City charges the fees on a monthly basis, not as a one-time charge.

The City’s creation of a stormwater utility, as the statute authorized, is a strong factor militating in favor of finding the stormwater fees a user fee. The City “establish[ed] stormwater management as a city utility enterprise in accordance with F.S. § 403.0893” and “established] a program of user charges for stormwater management service to be charged to all developed property within the city that contributes stormwater runoff to the city’s stormwater management systems to accomplish the functions of such utility.” Gainesville, Fla., Code art. V, § 27-236.

We have previously recognized that the creation of a statutorily-authorized utility strongly favors the validity of the fees imposed. In Pinellas County v. State, 776 So.2d 262, 268 (Fla.2001) (footnote omitted), we noted that “where a governmental entity provides access to traditional utility services, this Court has not hesitated to uphold local ordinances imposing mandatory fees, regardless of whether the individual customer actually uses or desires the service.” In a footnote, we cited stormwa-ter management programs defined under section 403.031(17), Florida Statutes (1997) as one category of many statutorily-authorized programs imposing mandatory fees to recoup the costs of providing water service. Id. at 268 n. 11. In another footnote, we noted that water systems are equivalent to traditional utilities such as sewer systems. Id. at 268 n. 10. Also, in City of Port Orange, 650 So.2d at 4, we distinguished a transportation utility fee that we held to be a tax from stormwater utility fees, noting that “storm-water utility fees are expressly authorized by section 403.031, Florida Statutes (1993).” See also City of Dunedin v. Contractors & Builders Ass’n, 312 So.2d 763, 766 (Fla. 2d DCA 1975) (“The imposition of fees for the use of a municipal utility system is not an exercise of the taxing power nor is it the levy of a special assessment.”) (citing State v. City of Miami, 157 Fla. 726, 27 So.2d 118 (1946)), quashed on other grounds, 329 So.2d 314 (Fla.1976). Therefore, the fact that the City has created a statutorily-authorized utility to provide stormwater management services militates strongly in favor of finding that the stormwater fees are user fees.

The State and DOT argue that the City’s fee constitutes a special assessment because it is not voluntary. The evidence showed, however, that in most cases the fee is voluntary. The City requires only properties that actually use the system to pay the fee. Properties that are either undeveloped or implement ways to retain all stormwater on site are exempted. Therefore, property owners can avoid the fee either by not developing the property or by implementing a system to retain stormwater on site. See City of Gainesville, 778 So.2d at 525 (holding that “[b]e-cause a landowner can refuse the City’s stormwater utility service and prevent liability for stormwater utility fees by containing runoff, the fees are neither a tax nor a special assessment”).

Nevertheless, the State and DOT argue that regarding apartment complexes in particular, because the City charges the fee to the tenants, not the owners, and because the tenants cannot avoid the fee, the fee is not voluntary as to those tenants. They rely on Port Orange, 650 So.2d at 3, in which we noted that “[user fees] are paid by choice, in that the party paying the fee has the option of not utilizing the governmental service and thereby avoiding the charge.” In this case, however, tenants may avoid the charge by choosing to live in multi-family dwellings that do not use the City’s stormwater system.

Even if we accept the proposition that tenants have no choice, although the voluntariness of the fee is one factor to consider, it is not dispositive. In Pinellas County, 776 So.2d at 268, we noted that we have upheld even mandatory fees for traditional utility services. A stormwater utility is similar to wastewater and sewer systems. Florida courts have upheld mandatory fees for such systems. See State v. City of Miami Springs, 245 So.2d 80 (Fla.1971) (holding that a municipality may charge a mandatory fee for sewer service unrelated to actual use); Town of Redington Shores v. Redington Towers, Inc., 354 So.2d 942 (Fla. 2d DCA 1978) (holding that the subject sewer fee applied to unoccupied condominiums without regard to actual use); see also Stone v. Town of Mexico Beach, 348 So.2d 40 (Fla. 1st DCA 1977) (upholding a mandatory flat rate for garbage service, regardless of use); City of Riviera Beach v. Martinique 2 Owners Ass’n, 596 So.2d 1164 (Fla. 4th DCA 1992) (holding that the subject solid waste removal ordinance applied to unoccupied condominiums without regard to actual use). Therefore, where a statute authorizes a utility fee, such fees may be considered user fees even though mandatory. In Port Orange, we noted that the transportation utility fee at issue was not statutorily authorized and therefore was not analogous to stormwater utility fees or other utility fees authorized by statute. We did not suggest that utility fees will only be considered user fees if they are voluntary, only that, where not authorized by statute, a valid user fee involves an element of choice. Again, we emphasize that a court must consider all the circumstances together, and none in isolation, in determining whether a particular charge is a user fee or a special assessment.

B. The Propriety of the City’s Fee Structure

DOT argues, and the trial court concluded, that the City’s ordinance violated section 403.031(17), Florida Statutes, because the fees are not based on the amount of stormwater a customer contributes to the system. We begin with the well-settled principle that the establishment of utility rates is generally a legislative function. Mohme v. City of Cocoa, 328 So.2d 422, 424 (Fla.1976). In setting utility rates, municipalities enjoy a certain latitude. City of Gainesville, 778 So.2d at 525 (citing State v. City of Miami, 157 Fla. 726, 27 So.2d 118, 125 (1946)). A city may charge different rates to different classes of users so long as the classifications are not arbitrary, unreasonable, or discriminatory. City of Miami Springs, 245 So.2d at 81.

Section 403.031(17) requires that the fees charged be based on the beneficiaries’ “relative contribution” to the need for a stormwater management system. Acting within its legislative discretion, the City determined that rain does not create the need for a stormwater management system. Rather, the need is created by impervious area, which prevents the rain from percolating into the ground. Therefore, the City properly based its fee on the amount of impervious area on each property. Moreover, in calculating the impervious area, the City acted within its discretion by using statistical estimates to determine that the typical single-family home in Gainesville creates a relatively equal need for a stormwater system. The City determined that the median single-family property in the City included 2300 square feet of impervious area, and based its ERUs on that figure. Those single-family homes that create a disproportionately greater need for the system — Hi.e., homes with more than 50 .percent impervious area and situated on lots with more than 10,000 square feet of total area — are billed separately. Thus, the City’s approach is reasonable. Section 403.0891(6), Florida Statutes, expressly authorizes this method of apportioning cost. The evidence showed that most stormwater utilities across the country use ERUs to estimate stormwater use. Courts in other states have upheld such a measurement. See Teter v. Clark County, 104 Wash.2d 227, 704 P.2d 1171, 1179 (1985) (refusing to require the municipality to measure each residential lot to ascertain the exact amount of impervious surface on each one).

DOT takes issue with the City’s use of a flat rate that does not account for the particular property’s actual use of the system. As the First District recognized in considering this issue, however, stormwa-ter runoff, like wastewater and solid waste- — and unlike potable water, gas, and electricity — cannot feasibly be metered. City of Gainesville, 778 So.2d at 525. In City of Miami Springs, 245 So.2d at 81, we upheld an ordinance setting a flat sewer fee of $7.00 per month for single-family residences and a variable rate based on use for all other users. Other Florida courts regularly have upheld flat rates for utility services. See City of New Smyrna Beach v. Fish, 384 So.2d 1272, 1273 (Fla.1980) (upholding an ordinance setting garbage collection rates that established a flat rate for single-family residences and multifamily residences of a certain size and a variable rate for all others based on the number and size of the containers); Town of Mexico Beach, 348 So.2d at 42 (upholding an ordinance charging a flat garbage rate for all residential users regardless of whether premises were occupied); Pinellas Apartment Ass’n v. City of St. Petersburg, 294 So.2d 676, 678 (Fla. 2d DCA 1974) (noting that “[t]he setting of utility rates is often a complicated process and mathematical exactitude cannot be required”).

Cases in other states also have upheld rates that do not precisely correlate with actual use. See Home Builders Ass’n of Utah v. City of American Fork, 973 P.2d 425, 429 (Utah 1999) (warning that “municipalities must have sufficient flexibility to deal realistically with issues that do not admit of any kind of precise mathematical equality”); McDonald Mobile Homes, Inc. v. Village of Swansea, 56 III.App.3d 759, 14 Ill.Dec. 102, 371 N.E.2d 1155, 1158 (1977) (upholding sewer fees where single-family residences, apartments, motel rooms and mobile homes were all placed in one classification, and commercial in another, noting that “[w]hile we agree with plaintiffs that defendant’s method for determining sewer use is not scientifically precise, we believe there is a substantial correlation between water consumption and sewer use and that the Village’s scheme for assessing sewer use charges is a reasonable exercise of its legislative authority”); McGrath v. City of Manchester, 119 N.H. 109, 398 A.2d 842, 845 (1979) (noting that “[t]he fact that absolute mathematical equality is not achieved does not render the system invalid”); Watergate II Apartments v. Buffalo Sewer Auth., 46 N.Y.2d 52, 412 N.Y.S.2d 821, 385 N.E.2d 560, 564 (1978) (recognizing that “[w]here only an approximation of cost or value is possible, discrepancies may have to be endured in the name of administrative flexibility so long as there exists some rational underpinning on the charges levied”).

The City also acted within its discretion in creating separate categories for multifamily homes and nonresidential property. For commercial properties, the City actually measures both impervious and semi-impervious area to determine the amount of stormwater runoff. We find nothing irrational in the distinction between runoff from single-family residences, for which the amount of runoff will vary but little from home to home, and those for commercial properties, which may vary more significantly. We have upheld such distinctions between residential and commercial properties in setting utility rates. See Miami Springs, 245 So.2d at 81 (upholding an ordinance setting a flat sewer fee of $7.00 per month for single-family residences and a variable rate based on use for all other users).

IV.ISSUES ON CROSS APPEAL

DOT raises two issues on cross appeal: whether sovereign immunity bars the City from collecting stormwater fees from DOT; and whether the City must consider the DOT’s contribution to the stormwater system in assessing any fee against DOT-owned property. Such issues are beyond the scope of a bond validation proceeding and therefore we do not address them. The DOT is free to assert those arguments in another forum.

V.CONCLUSION

The financing agreement upon which the City’s proposed bond issue is secured is legal. Accordingly, we reverse the trial court’s dismissal of the City’s complaint and remand with instructions for the trial court to enter an order validating the City’s bonds. We also reverse the award of costs to DOT.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, QUINCE, and BELL, JJ., concur.

LEWIS, J., concurs in result only.

      . The City of Gainesville Code defines "impervious area” as "any part of any parcel of land that has an impermeable cover caused to be erected or constructed by the action of persons, and such covers include, but are not limited to, buildings, parking lots, driveways, patios, decks, walkways, and athletic courts.” Gainesville, Fla., Code art. V, § 27-237 (2001).

      . In applying the ordinance, the City gives partial credit when properties retain some, but not all, stormwater onsite. The ordinance itself, however, states that "[a] minimum value of 1.0 ERU shall be assigned to each nonresidential/commercial property unless such property has earned a 100-percent retention credit, in which case, the property will be assigned a value of 0.0 ERU.” Gainesville, Fla., Code art. V, § 27-241(b)(3) (2002). Therefore, we analyze the City’s stormwater management program according to the language of the ordinance.

      . If the stormwater fees were a tax, they would be illegal because the Florida Constitution authorizes municipalities to impose only ad valorem taxation "except as provided by general law,” see art. VII, § 1(a), Fla. Const., and no law has authorized such a tax. Special assessments are not taxes because they confer a special benefit on the land burdened by the assessment. See City of Boca Raton v. State, 595 So.2d 25, 29 (Fla.1992). As a state agency, however, DOT would be exempt from special assessments absent a statute specially authorizing, either explicitly or "by necessary implication,” special assessments on state property. See City of Gainesville v. State Dep’t of Transp., 778 So.2d 519, 521-22 (Fla. 1st DCA 2001) (quoting Blake v. City of Tampa, 115 Fla. 348, 156 So. 97, 99 (1934)).

      . Section 403.0891(6) requires that agencies and local governments develop a model stormwater management program containing dedicated funding options, "including a stormwater utility fee system based upon an equitable unit cost approach."

      . At trial, DOT argued that the City had to measure the precise amount of stormwater runoff from each property, but acknowledged that implementing a system for accurately measuring the runoff was prohibitively expensive, if it was available at all. The DOT has abandoned this argument on appeal.


author: PARIENTE, J.

text:
    STATE of Florida, Petitioner, v. CITY OF CLEARWATER, Respondent. Times Publishing Company, Petitioner, v. City of Clearwater, Respondent.
    Nos. SC02-1694, SC02-1753.
    Supreme Court of Florida.
    Sept. 11, 2003.

      Christopher M. Rise, Solicitor General, and Louis F. Hubener, Chief Deputy Solicitor General, Tallahassee, Florida; and David F. Chester, Assistant Attorney General, on behalf of Charles J. Crist, Jr., Attorney General, Tallahassee, Florida, for Petitioner, State of Florida.
    Pamela K. Akin, City Attorney, and Leslie K. Dougall Sides, Assistant City Attorney, Clearwater, Florida, for Respondent, City of Clearwater.
    Carole Sanzeri, Senior Assistant County Attorney, and Michael A. Zas, Senior Assistant County Attorney, Clearwater, Florida, Amicus Curiae, Pinellas County on behalf of Florida Association of County Attorneys.
    George K. Rahdert, Alison M. Steele, Penelope T. Bryan, and Thomas E. Reynolds of Rahdert, Steele, Bryan & Bole, P.A., St. Petersburg, Florida, for Petitioners, Times Publishing Company.
   PARIENTE, J.

We have for review a decision of the Second District Court of Appeal, which certified the following question of great public importance:

WHETHER ALL E-MAILS TRANSMITTED OR RECEIVED BY PUBLIC EMPLOYEES OF A GOVERNMENT AGENCY ARE PUBLIC RECORDS PURSUANT TO SECTION 119.011(1), FLORIDA STATUTES (2000), AND ARTICLE I, SECTION 24(A), OF THE FLORIDA CONSTITUTION BY VIRTUE OF THEIR PLACEMENT ON A GOVERNMENT-OWNED COMPUTER SYSTEM IF THE AGENCY HAS A WRITTEN POLICY THAT INFORMS THE EMPLOYEES THAT THE AGENCY MAINTAINS A RIGHT TO CUSTODY, CONTROL AND INSPECTION OF E-MAILS?

Times Publishing Co. v. City of Clearwater, 830 So.2d 844, 848-49 (Fla. 2d DCA 2002). We have jurisdiction, see art. V, § 3(b)(4), Fla. Const, and rephrase the certified question as follows:

WHETHER ALL E-MAILS TRANSMITTED OR RECEIVED BY PUBLIC EMPLOYEES OF A GOVERNMENT AGENCY ARE PUBLIC RECORDS PURSUANT TO SECTION 119.011(1), FLORIDA STATUTES (2000), AND ARTICLE I, SECTION 24(A) OF THE FLORIDA CONSTITUTION BY VIRTUE OF THEIR PLACEMENT ON A GOVERNMENT-OWNED COMPUTER SYSTEM.

For the reasons stated below, we answer the rephrased question in the negative and approve the Second District’s decision.

FACTS

The facts of this case are straightforward. In October 2000, a Times Publishing Company reporter requested that the City of Clearwater provide copies of all emails either sent from or received by two city employees over the City’s computer network between October 1, 1999, and October 6, 2000. Pursuant to the City’s procedures, the employees reviewed their emails and sorted them into two categories, personal and public. No one else reviewed the e-mails deemed by the employees to be personal. The City copied the public emails and provided them to Times Publishing.

Times Publishing filed an action in the circuit court to obtain the e-mails the employees had designated as private. Times Publishing asserted that it was entitled to all the e-mails generated by and stored on the City’s computers. The circuit court granted Times Publishing’s request for a temporary injunction and ordered the City to “make every reasonable effort to retrieve, preserve and secure from destruction” all e-mails sent or received by the employees in question between October 1, 1999, and October 6, 2000.

After a final hearing at which three of the City’s employees testified, the trial court issued a detailed and thorough order denying Times Publishing’s request for a writ of mandamus and permanent injunc-tive relief. The Second District affirmed the trial court’s order without prejudice to Times Publishing seeking an in camera review of the disputed e-mails. See Times Publishing, 830 So.2d at 848. The Second District concluded that “private” or “personal” e-mails fall outside the current definition of public records because they are neither “made or received pursuant to law or ordinance” nor “created or received ‘in connection with official business’ of the City or ‘in connection with the transaction of official business’ by the City.” Id. at 847. Because its decision affects how every state agency and municipality maintains its electronic records and the public’s access to those records, the Second District certified the question of great public importance to this Court. See id. at 848-49.

ANALYSIS

This case involves the narrow legal issue of whether personal e-mails are considered public records by virtue of their placement on a government-owned computer system. “The determination of what constitutes a public record is a question of law entitled to de novo review.” Media Gen. Convergence, Inc. v. Chief Judge of the Thirteenth Judicial Circuit, 840 So.2d 1008, 1013 (Fla.2003).

Times Publishing argues that the placement of e-mails on the City’s computer system makes the e-mails public records, regardless of their content or intended purpose. The State contends that the headers created by e-mails when they are sent are akin to phone records or mail logs, which the State asserts are clearly public records. We conclude that both of these arguments are without merit.

Access to public records is currently guaranteed by article I, section 24 of the Florida Constitution, and chapter 119 Florida Statutes (2002). Article I, section 24 provides in pertinent part:

(a) Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive and judicial branches of government....

(Emphasis supplied.) Chapter 119 defines public records as

all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.

§ 119.011(1), Fla. Stat. (2002) (emphasis supplied). Thus, both article I, section 24 and chapter 119 specify that public records are those records that are in some way connected to “official business.”

A review of the history of Florida’s public records law indicates that the connection between public records and official business was established well before the Legislature enacted the first public records statute. In Bell v. Kendrick, 25 Fla. 778, 6 So. 868 (1889), this Court considered whether evidence of a certificate of a deed was admissible in an action for ejectment when the deed was lost and had never been recorded. The Court noted that records kept by persons in public office are generally admissible, and explained:

[Wjhenever a written record of the transactions of a public officer is a convenient and appropriate mode of discharging the duties of his office, it is not only his right, but his duty, to keep that written memorial, ... and, when kept, it becomes a public document — a public record — belonging to the office, and not to the officer.

Id. at 869 (emphasis supplied). The Court concluded that because “[i]t was clearly the duty of the register of state lands to keep in his office a register of sales and conveyances of land,” a certified transcript of these entries was admissible as evidence of the execution of the conveyance. Id. at 870.

Twenty years after Bell, the Legislature enacted Florida’s first public records statute, which mandated that “all State, county and municipal records” be open “for a personal inspection of any citizen of Florida, and those in charge of such records shall not refuse this privilege to any citizen.” Ch. 5942, Laws of Fla. (1909). The statute did not provide a definition of public records and this Court continued to apply the “discharge of duty” analysis established in Bell. See Amos v. Gunn, 84 Fla. 285, 94 So. 615, 634 (1922) (“A public record is one required by law to be kept, or necessary to be kept in the discharge of a duty imposed by law, or directed by law to serve as a memorial and evidence of something written, said, or done.”).

In 1967 the Legislature first defined the term “public records”:

“Public Records” shall mean all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings or other material, regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.

Ch. 67-125, § 1(a) at 254, Laws of Fla. (emphasis supplied). This definition, codified in section 119.011(1), has remained essentially unchanged. The most significant change to section 119.011(1) occurred in 1995 when the Legislature amended the definition of “public records” to include “data processing software” and information regardless of “means of transmission.” See ch. 95-296, § 6 at 2727, Laws of Fla. Thus, electronic documents stored in a computer can be public records provided they are “made or received pursuant to law or ordinance or in connection with the transaction of official business.” § 119.011(1), Fla. Stat. (2002).

“In construing a statute, we look first to the statute’s plain meaning.” Moonlit Waters Apartments, Inc. v. Cauley, 666 So.2d 898, 900 (Fla.1996). Based on the plain language of section 119.011(1), we agree with the Second District’s conclusion that “private” or “personal” e-mails “simply fall[] outside the current definition of public records.” Times Publishing, 830 So.2d at 847. As the Second District explained:

Such e-mail is not “made or received pursuant to law or ordinance.” Likewise, such e-mail by definition is not created or received “in connection with the official business” of the City or “in connection with the transaction of official business” by the City. Although digital in nature, there is little to distinguish such e-mail from personal letters delivered to government workers via a government post office box and stored in a government-owned desk.

Id. This conclusion is supported by this Court’s decision in In re Amendments to Rule of Judicial Administration 2.051— Public Access to Judicial Records, 651 So.2d 1185 (Fla.1995), in which we discussed the public’s right of access to the judicial branch’s official business e-mail:

Official business e-mail transmissions must be treated just like any other type of official communication received and filed by the judicial branch.... E-mail may include transmissions that are clearly not official business and are, consequently, not required to be recorded as a public record.

Id. at 1187 (emphasis supplied).

Although public access to records of the judicial branch is governed by court rule rather than by chapter 119, we recently acknowledged that the definition of “judicial records” contained in Florida Rule of Judicial Administration 2.051 “is virtually identical to the legislative definition of ‘public records’ contained in section 119.011(1) ... insofar as section 119.011(1) defines ‘public records’ as ‘all documents ... made or received pursuant to law or ordinance or in connection with the transaction of official ■ business by any agency.’ Media Gen. Convergence, 840 So.2d at 1014. Thus, this Court’s determination that judicial e-mails that are not made or received in connection with official business are not required to be recorded as public records also applies to agency emails governed by chapter 119.

Further, Times Publishing’s argument that the placement of e-mails on the City’s computer network automatically makes them public records is contrary to this Court’s decision in Shevin v. Byron, Harless, Schaffer, Reid & Assocs., Inc., 379 So.2d 633 (Fla.1980). In Shevin, this Court rejected the First District’s conclusion that “section 119.011(1) applies to almost everything generated or received by a public agency.” Id. at 640. Although this Court acknowledged that the Legislature broadened the class of public records in enacting section 119.011(1), this Court concluded that the definition of the term “public records” limited “public information to those materials which constitute records — that is, materials that have been prepared with the intent of perpetuating or formalizing knowledge.” Id. (second emphasis supplied). Thus, it cannot merely be the placement of the e-mails on the City’s computer system that makes the emails public records. Rather, the e-mails must have been prepared “in connection with official agency business” and be “intended to perpetuate, communicate, or formalize knowledge of some type.” Id.

We agree with the trial court’s observation that “[c]ommon sense ... opposes a mere possession rule.” The trial court explained:

This court noted several times during hearings on this case the absurd consequences of such an application of the law. If the Attorney General brings his household bills to the office to work on during lunch, do they become public record if he temporarily puts them in his desk drawer? If a Senator writes a note to herself while speaking with her husband on the phone does it become public record because she used a state note pad and pen? The Sheriffs secretary, proud of her children, brings her Mother’s Day cards to the office to show her friends. Do they become public records if she keeps them in the filing cabinet?

Times Publishing Co. v. City of Clearwater, No. 00-8232-CI-13 at 10 (6th Cir Ct. order filed May 21, 2001). Just as an agency cannot circumvent the Public Records Act by allowing a private entity to maintain physical custody of documents that fall within the definition of “public records,” see Wisner v. City of Tampa Police Dep't, 601 So.2d 296, 298 (Fla. 2d DCA 1992), private documents cannot be deemed public records solely by virtue of their placement on an agency-owned computer. The determining factor is the nature of the record, not its physical location.

Moreover, we agree with the City that its “Computer Resources Use Policy,” which states that the City’s computer resources are the property of the City and that users have no expectation of privacy, cannot be construed as expanding the constitutional or statutory definition of public records to include “personal” documents. Times Publishing conceded at oral argument that its position — that all e-mails on the City’s computer should be considered public record — does not hinge on the City’s Computer Resources Use Policy. Further, as noted by the Second District, “[although the City’s policy may prevent the employees from asserting a privacy right to contest disclosure, the policy did not and could not alter the statutory definition of public records for purposes of chapter 119.” Times Publishing, 830 So.2d at 846. Cf. Tribune Co. v. Cannella, 458 So.2d 1075, 1077 (Fla.1984) (stating that it is a “fundamental principle that a municipality may not act in an area preempted by the legislature” and holding that the Public Records Act preempted the City of Tampa’s regulation that delayed the production of requested personnel records).

Finally, we disagree with the narrower view asserted by the Attorney General that the creation of an e-mail “header” makes all e-mails, regardless of their content or intended purpose, public records. Relying on the Department of State’s public records retention schedule, the Attorney General describes the header information of an e-mail as “including all date/time stamps, routing information, etc.” The Attorney General asserts that the e-mail system’s creation of this header information distinguishes e-mails from paper documents and makes all e-mails generated on or received by a City computer subject to disclosure under chapter 119. The Attorney General supports this assertion by comparing the creation of e-mail headers to the creation of mail logs or phone records, which the Attorney General maintains are clearly public records even if they contain information that is personal.

Assuming arguendo that an agency’s mail logs or phone records are public records, we cannot equate the automatic creation of a header for each article of correspondence by an e-mail program with a log. The Attorney General contends that the only difference between phone records or traditional mail logs and the e-mail header information is that traditional logs are contained as one single document, not as multiple, independent entries. We conclude that this is an essential difference.

In this case, there is no evidence in the record that the City maintains or generates, in its normal course of operations, a list of e-mail headers created by its employees’ use of the computer network. The fact that mail logs and phone records are purposely compiled and maintained by an agency distinguishes them from email headers, which are by-products of the employee’s use of the agency’s e-mail system, and are neither purposely compiled nor maintained in the course of an agency’s operations. Simply stated, e-mail headers are not “prepared” with the intent to “perpetuate, communicate, or formalize knowledge of some type.” Shevin, 379 So.2d at 640. Therefore, neither the individual header nor the attached e-mail is a “public record” subject to disclosure under chapter 119.

Based on the foregoing, we conclude that “personal” e-mails are not “made or received pursuant to law or ordinance or in connection with the transaction of official business” and, therefore, do not fall within the definition of public records in section 119.011(1) by virtue of their placement on a government-owned computer system. Accordingly, we answer the rephrased question in the negative and approve the Second District’s decision.

It is so ordered.

ANSTEAD, C.J., and WELLS, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

      . After the Second District released its initial decision in this case, the State, through the Attorney General, filed a motion to intervene in support of Times Publishing’s motion for certification of a question of great public importance. The Second District withdrew its initial decision and reissued its opinion, granting the Attorney General's motion and certifying the question of great public importance to this Court.

      . As noted by the Second District, this case does not involve: (1) “e-mail[s] that may have been isolated by a government employee whose job required him or her to locate employee misuse of government computers”; (2) "a balancing of the public's interest in open public records and an individual's right to privacy”; or (3) "an in camera inspection of records.” Times Publishing, 830 So.2d at 845-46.

      . Chapter 119 applies only to "agency” records. "Agency” is defined as:
      [A]ny state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law including, for the purposes of this chapter, the Commission on Ethics, the Public Service Commission, and the Office of Public Counsel, and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency.
      § 119.011(2), Fla. Stat. (2002).

      . In Report of the Supreme Court Workgroup on Public Records, 825 So.2d 889, 896 (Fla. 2002), the Court amended rule 2.051, replacing the term "judicial records” with the term "records of the judicial branch,” which includes both "court records” and “administrative records.” "Records of the judicial branch” are defined as “all records, regardless of physical form, characteristics, or means of transmission, made or received in connection with the transaction of official business by any judicial branch entity.” Fla. R. Jud. Admin. 2.051(b)(1) (emphasis supplied). "Court records” are the contents of the court file and "administrative records” are "all other records made or received pursuant to court rule, law, or ordinance, or in connection with the transaction of official

        business by any judicial entity.” Fla. R. Jud. Admin 2.051(b)(l)(A)-(B) (emphasis supplied). Thus, judicial records subject to public disclosure are still limited to those "made or received pursuant to court rule, law, or ordinance, or in connection with the transaction of official business.”

      . See Division of Library and Information Services, Department of State, General Records Schedule GS1-L for Local Government Agencies ii (2001) available at http://dlis.dos.state.fl.us/barrn/gensche-dules/gensched.htm.

      . Compare Op. Att’y Gen. Fla. 99-74 (1999) (advising a school board that its phone records were public records even if the calls indicated were personal and paid for by the employee) with Media Gen. Operation, Inc. v. Feeney, 849 So.2d 3, 6 (Fla. 1st DCA 2003) (holding that records of personal phone calls made by staff employees of the House of Representatives “fall outside the current definition of public records and were properly redacted”).

      .We decline to address the remaining issue raised by the parties because it is beyond the scope of the certified question. See Crocker v. Pleasant, 778 So.2d 978, 990-91 (Fla.2001).