          Supreme Court of Florida
                                   ____________

                                    No. SC18-79
                                   ____________

                        ORANGE COUNTY, FLORIDA,
                                Petitioner,

                                         vs.

                             RICK SINGH, etc., et al.,
                                  Respondents.

                                   April 18, 2019

PER CURIAM.

      Respondents’ Joint Motion to Recall Mandate is hereby granted. The

opinion of this Court dated January 4, 2019, is hereby withdrawn, and this opinion

is substituted in its place. See § 43.44, Fla. Stat. (2018) (“An appellate court may,

as the circumstances and justice of the case may require, reconsider, revise, reform,

or modify its own opinions and orders for the purpose of making the same accord

with law and justice.”); Fla. R. Jud. Admin. 2.205(b)(5). In light of the substituted

opinion, we hereby deny Respondents’ Joint Motion for Clarification.

      We have for review the Fifth District Court of Appeal’s decision in Orange

County v. Singh, 230 So. 3d 639 (Fla. 5th DCA 2017), which affirmed a trial court
judgment invalidating an Orange County ordinance.1 Because home-rule counties

may not enact ordinances on subjects preempted to the State and inconsistent with

general law,2 we approve the decision of the Fifth District.

                                  I. Background

      The underlying background was discussed in the Fifth District’s opinion as

follows:

             On August 19, 2014, the Orange County Board of
      Commissioners enacted an ordinance proposing an amendment to the
      Orange County Charter to provide for term limits and nonpartisan
      elections for six county constitutional officers—clerk of the circuit
      court, comptroller, property appraiser, sheriff, supervisor of elections,
      and tax collector. The ordinance provided for the following ballot
      question to be presented for further approval:

             CHARTER AMENDMENT PROVIDING FOR TERM
             LIMITS AND NON–PARTISAN ELECTIONS FOR
             COUNTY CONSTITUTIONAL OFFICERS
             For the purpose of establishing term limits and
             nonpartisan elections for the Orange County Clerk of the
             Circuit Court, Comptroller, Property Appraiser, Sheriff,
             Supervisor of Elections and Tax Collector, this
             amendment provides for county constitutional officers to
             be elected on a non-partisan basis and subject to term
             limits of four consecutive full 4–year terms.
             _____ Yes
             _____ No



      1. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

       2. Article VIII, section 1(g) of the Florida Constitution provides that “[t]he
governing body of a county operating under a charter may enact county ordinances
not inconsistent with general law.”


                                        -2-
The ballot question appeared on the November 4, 2014[,] ballot and
was approved by the majority of Orange County voters. As a result,
the relevant portions of section 703 of the Orange County Charter
were amended (as underlined) to read:

             B. Except as may be specifically set forth in the
      Charter, the county officers referenced under Article
      VIII, Section 1(d) of the Florida Constitution and Chapter
      72–461, Laws of Florida, shall not be governed by the
      Charter but instead governed by the Constitution and
      laws of the State of Florida. The establishment of
      nonpartisan elections and term limits for county
      constitutional officers shall in no way affect or impugn
      their status as independent constitutional officers, and
      shall in no way imply any authority by the board
      whatsoever over such independent constitutional officers.
             C. Elections for all county constitutional offices
      shall be non-partisan. No county constitutional office
      candidate shall be required to pay any party assessment
      or be required to state the party of which the candidate is
      a member. All county constitutional office candidates’
      names shall be placed on the ballot without reference to
      political party affiliation.
             In the event that more than two (2) candidates have
      qualified for any single county constitutional office, an
      election shall be held at the time of the first primary
      election and, providing no candidate receives a majority
      of the votes cast, the two (2) candidates receiving the
      most votes shall be placed on the ballot for the general
      election.
             D. Any county constitutional officer who has held
      the same county constitutional office for the preceding
      four (4) full consecutive terms is prohibited from
      appearing on the ballot for reelection to that office;
      provided, however, that the terms of office beginning
      before January 1, 2015 shall not be counted.

       Prior to the November 4, 2014 election, three Orange County
constitutional officers—the sheriff, property appraiser, and tax
collector (collectively “Appellees”)—filed a suit for declaratory and

                                 -3-
      injunctive relief against Orange County, challenging the underlying
      county ordinance as well as the ballot title and summary. After the
      election, in ruling on competing summary judgment motions, the trial
      court upheld the portion of the charter amendment providing for term
      limits, but struck down that portion providing for nonpartisan
      elections. The trial court concluded that Orange County was
      prohibited from regulating nonpartisan elections for county
      constitutional officers because that subject matter was preempted to
      the Legislature.

Singh, 230 So. 3d at 640-41 (footnote omitted).

      On appeal, the Fifth District affirmed the trial court’s judgment. Id. at 640.

The Fifth District held that section 97.0115, Florida Statutes, expressly preempts

the Orange County ordinance requiring nonpartisan elections for county

constitutional officers. Id. at 641-42. The Fifth District reasoned that the

Legislature regulates elections generally through the Florida Election Code and

“enacted section 97.0115, which expressly provides that all matters set forth in the

Florida Election Code were preempted” to the Legislature. Id. at 642. The Fifth

District further reasoned that chapter 105, Florida Statutes, “set forth provisions

and procedures specific to nonpartisan elections,” and “chapter 105 did not

authorize counties to hold nonpartisan elections for the county constitutional

officers that are the subject of the charter amendment at issue.” Id.

                          II. The Florida Election Code

      Article VI, section 1 of the Florida Constitution provides that “[r]egistration

and elections shall, and political party functions may, be regulated by law[.]” See


                                         -4-
Grapeland Heights Civic Ass’n v. City of Miami, 267 So. 2d 321, 324 (Fla. 1972)

(“[I]t necessarily follows that ‘law’ in our constitution means an enactment by the

State Legislature . . .—not by a City Commission or any other political body.”).

The Legislature regulates elections through the Florida Election Code, which

encompasses chapters 97-106, Florida Statutes (2018). 3 Importantly, the Florida

Election Code contains express language of preemption as section 97.0115 states

that “[a]ll matters set forth in chapters 97-105 are preempted to the state, except as

otherwise specifically authorized by state or federal law.” The Florida Election

Code further explains that the Secretary of State, as “the chief election officer of

the state,” is to “[o]btain and maintain uniformity in the interpretation and

implementation of the election laws.” § 97.012(1), Fla. Stat. (2018).

      The Florida Election Code generally contemplates partisan elections. 4 In

other words, candidates nominated by political parties in the primary election are

to appear on the general election ballot for most offices. See § 101.151(2)(c), Fla.

Stat. (2018) (“Each nominee of a political party chosen in a primary shall appear

on the general election ballot in the same numbered group or district as on the



       3. Section 97.011, Florida Statutes (2018), provides “[c]hapters 97-106
inclusive shall be known and may be cited as ‘The Florida Election Code.’ ”

      4. In construing the Florida Election Code, it is necessary to read all
provisions in pari materia. Palm Beach Cty. Canvassing Bd. v. Harris, 772 So. 2d
1273, 1290 n.22 (Fla. 2000).


                                         -5-
primary election ballot.”). In fact, section 97.021(29) (emphasis added), defines a

“[p]rimary election” as “an election held preceding the general election for the

purpose of nominating a party nominee to be voted for in the general election to fill

a national, state, county, or district office.”

       Specifically, section 100.051 provides that “[t]he supervisor of elections of

each county shall print on ballots to be used in the county at the next general

election the names of candidates who have been nominated by a political party and

the candidates who have otherwise obtained a position on the general election

ballot in compliance with the requirements of this code.” In addition to the

candidates nominated by political parties, no-party affiliation candidates, minor

political party candidates, and spaces for write-in candidates may be listed on the

general election ballot and may compete for the same offices as the major political

party candidates in compliance with the Florida Election Code. § 99.0955, Fla.

Stat. (2018); § 99.096, Fla. Stat. (2018); § 99.061(4)(b), Fla. Stat. (2018).

       Regarding qualifying for nomination or election to county offices in

particular, section 99.061(2) (emphasis added) provides that “each person seeking

to qualify for nomination or election to a county office . . . shall file his or her

qualification papers with, and pay the qualifying fee, which shall consist of the

filing fee and election assessment, and party assessment, if any has been levied, to,

the supervisor of elections of the county, or shall qualify by the petition process


                                           -6-
pursuant to s. 99.095.” The same subsection also states that “the supervisor of

elections shall remit to the secretary of the state executive committee of the

political party to which the candidate belongs the amount of the filing fee, two-

thirds of which shall be used to promote the candidacy of candidates for county

offices and the candidacy of members of the Legislature.” Id. (emphasis added).

      Regarding timing, section 100.031, Florida Statutes (2018), provides that

“[a] general election shall be held in each county on the first Tuesday after the first

Monday in November of each even-numbered year.” Section 100.061, Florida

Statutes (2018), states that “a primary election for nomination of candidates of

political parties shall be held on the Tuesday 10 weeks prior to the general

election.” Further, section 100.041(1), Florida Statutes (2018) (emphasis added),

lists the following offices, including several county constitutional offices, that are

to be chosen at the general election after a primary election:

      State senators shall be elected for terms of 4 years, those from odd-
      numbered districts in each year the number of which is a multiple of 4
      and those from even-numbered districts in each even-numbered year
      the number of which is not a multiple of 4. Members of the House of
      Representatives shall be elected for terms of 2 years in each even-
      numbered year. In each county, a clerk of the circuit court, sheriff,
      superintendent of schools, property appraiser, and tax collector shall
      be chosen by the qualified electors at the general election in each year
      the number of which is a multiple of 4. The Governor and the
      administrative officers of the executive branch of the state shall be
      elected for terms of 4 years in each even-numbered year the number
      of which is not a multiple of 4. The terms of state offices other than
      the terms of members of the Legislature shall begin on the first
      Tuesday after the first Monday in January after said election. The

                                         -7-
      term of office of each member of the Legislature shall begin upon
      election.

See also § 98.015(1), Fla. Stat. (2018) (“A supervisor of elections shall be elected

in each county at the general election in each year the number of which is a

multiple of four for a 4-year term commencing on the first Tuesday after the first

Monday in January succeeding his or her election.”).

      However, while the Florida Election Code contemplates elections for most

offices to include candidates nominated by political parties, it also specifies that

elections for certain offices must be nonpartisan. Pursuant to section 97.021(22),

Florida Statutes (2018), “ ‘Nonpartisan office’ means an office for which a

candidate is prohibited from campaigning or qualifying for election or retention in

office based on party affiliation.” Then, chapter 105, entitled “Nonpartisan

Elections,” provides that judicial officers and school board members are

nonpartisan offices. Candidates for judicial offices (or those seeking retention) are

“prohibited from campaigning or qualifying for such [offices] based on party

affiliation.” § 105.011(2), Fla. Stat. (2018). Furthermore, section 105.09(1),

Florida Statutes (2018), states that “[n]o political party or partisan political

organization shall endorse, support, or assist any candidate in a campaign for

election to judicial office.” Section 105.035(1), Florida Statutes (2018), also

explains that “[a] person seeking to qualify for election to the office of circuit

judge or county court judge or the office of school board member may qualify for

                                          -8-
election to such office by means of the petitioning process prescribed in this

section.” And section 105.041(3)-(4), Florida Statutes (2018), states that “[n]o

reference to political party affiliation shall appear on any ballot with respect to any

nonpartisan office or candidate,” while “[s]pace shall be made available on the

general election ballot” for write-in candidates for circuit and county court judge as

well as school board members.

      Regarding timing of the nonpartisan elections, section 105.051(1)(b), Florida

Statutes (2018), provides that elections for judicial officers and school board

members are to be conducted during the primary election with the possibility of a

run-off during the general election:

      If two or more candidates, neither of whom is a write-in candidate,
      qualify for such an office, the names of those candidates shall be
      placed on the ballot at the primary election. If any candidate for such
      office receives a majority of the votes cast for such office in the
      primary election, the name of the candidate who receives such
      majority shall not appear on any other ballot unless a write-in
      candidate has qualified for such office. An unopposed candidate shall
      be deemed to have voted for himself or herself at the general election.
      If no candidate for such office receives a majority of the votes cast for
      such office in the primary election, the names of the two candidates
      receiving the highest number of votes for such office shall be placed
      on the general election ballot. If more than two candidates receive an
      equal and highest number of votes, the name of each candidate
      receiving an equal and highest number of votes shall be placed on the
      general election ballot. In any contest in which there is a tie for
      second place and the candidate placing first did not receive a majority
      of the votes cast for such office, the name of the candidate placing
      first and the name of each candidate tying for second shall be placed
      on the general election ballot.



                                         -9-
Additionally, the nonpartisan chapter of the Florida Election Code, chapter 105,

specifies that the retention elections of appellate judges are to take place during the

general election. § 105.051(2), Fla. Stat. (2018).

      Notably, chapter 105 does not include any county constitutional officers as

nonpartisan. The specific references to the county constitutional officers in the

Florida Election Code are in its more general provisions in which candidates

nominated by political parties may appear on the general ballot. Moreover,

although the Florida Election Code expressly allows for municipal elections to

vary from its requirements pursuant to an ordinance or charter so long as the

variance does not conflict with “any provision in the Florida Election Code that

expressly applies to municipalities,” § 100.3605(1), Florida Statutes (2018), there

is no similar allowance for county elections.

 III. The Orange County Ordinance is Expressly Preempted and in Conflict

      Orange County contends that the ordinance at issue in this case is not

expressly preempted by or in conflict with the Florida Election Code. We

disagree.

      In Phantom of Brevard, Inc. v. Brevard County, 3 So. 3d 309, 314 (Fla.

2008), this Court explained the following standards regarding whether a county

ordinance is preempted by or in conflict with a statute:

           Pursuant to our Constitution, chartered counties have broad
      powers of self-government. See art. VIII, § 1(g), Fla. Const. Indeed,

                                        - 10 -
under article VIII, section 1(g) of the Florida Constitution, chartered
counties have the broad authority to “enact county ordinances not
inconsistent with general law.” See also David G. Tucker, A Primer
on Counties and Municipalities, Part I, Fla. B.J., Mar. 2007, at 49.
However, there are two ways that a county ordinance can be
inconsistent with state law and therefore unconstitutional. First, a
county cannot legislate in a field if the subject area has been
preempted to the State. See City of Hollywood v. Mulligan, 934 So.
2d 1238, 1243 (Fla. 2006). “Preemption essentially takes a topic or a
field in which local government might otherwise establish appropriate
local laws and reserves that topic for regulation exclusively by the
legislature.” Id. (quoting Phantom of Clearwater[, Inc. v. Pinellas
County], 894 So. 2d [1011], 1018 [(Fla. 2d DCA 2005]). Second, in a
field where both the State and local government can legislate
concurrently, a county cannot enact an ordinance that directly
conflicts with a state statute. See Tallahassee Mem’l Reg’l Med. Ctr.,
Inc. v. Tallahassee Med. Ctr., Inc., 681 So. 2d 826, 831 (Fla. 1st DCA
1996). Local “ordinances are inferior to laws of the state and must not
conflict with any controlling provision of a statute.” Thomas v. State,
614 So. 2d 468, 470 (Fla. 1993); Hillsborough County v. Fla. Rest.
Ass’n, 603 So. 2d 587, 591 (Fla. 2d DCA 1992) (“If [a county] has
enacted such an inconsistent ordinance, the ordinance must be
declared null and void.”); see also Rinzler v. Carson, 262 So. 2d 661,
668 (Fla. 1972) (“A municipality cannot forbid what the legislature
has expressly licensed, authorized or required, nor may it authorize
what the legislature has expressly forbidden.”).
       There is conflict between a local ordinance and a state statute
when the local ordinance cannot coexist with the state statute. See
City of Hollywood, 934 So. 2d at 1246; see also State ex rel. Dade
County v. Brautigam, 224 So. 2d 688, 692 (Fla. 1969) (explaining that
“inconsistent” as used in article VIII, section 6(f) of the Florida
Constitution “means contradictory in the sense of legislative
provisions which cannot coexist”). Stated otherwise, “[t]he test for
conflict is whether ‘in order to comply with one provision, a violation
of the other is required.’ ” Browning v. Sarasota Alliance for Fair
Elections, Inc., 968 So. 2d 637, 649 (Fla. 2d DCA 2007) (quoting
Phantom of Clearwater, 894 So. 2d at 1020), review granted, No.
SC07-2074 (Fla. Nov. 29, 2007).




                                - 11 -
       In this case, the Florida Election Code expressly preempts the Orange

County ordinance requiring nonpartisan elections for its county constitutional

officers. Section 97.0115 provides that “[a]ll matters set forth in chapters 97-105

are preempted to the state, except as otherwise specifically authorized by state or

federal law.” As explained above, the Florida Election Code contemplates partisan

elections for most offices, and it does not specifically authorize otherwise for

county constitutional officers. Furthermore, article VIII, section 1(d) of the Florida

Constitution does not expressly label the election of county constitutional officers

as “partisan” or “nonpartisan.” Therefore, this constitutional provision is not an

exception to the preemption language contained in section 97.0115.

       The Florida Election Code contains detailed provisions specific to county

constitutional officers and county elections, provisions that are within the portions

of the code providing for partisan elections. Section 100.041 states that “[i]n each

county, a clerk of the circuit court, sheriff, superintendent of schools, property

appraiser, and tax collector shall be chosen by the qualified electors at the general

election in each year the number of which is a multiple of 4.” See also § 100.031,

Fla. Stat. (“A general election shall be held in each county . . . to choose a

successor to each elective . . . county . . . officer . . . .”); § 98.015 (1), Fla. Stat. (“A

supervisor of elections shall be elected in each county at the general

election . . .”). Further, section 100.051 expressly provides that candidates listed


                                           - 12 -
on the general election ballot are “candidates who have been nominated by a

political party and the candidates who have otherwise obtained a position on the

general election ballot in compliance with the requirements of this code.”

(Emphasis added.)

      In contrast, the Orange County ordinance provides as follows:

      Elections for all county constitutional offices shall be non-partisan.
      No county constitutional office candidate shall be required to pay any
      party assessment or be required to state the party of which the
      candidate is a member. All county constitutional offices candidates’
      names shall be placed on the ballot without reference to party
      affiliation.

Singh, 230 So. 3d at 640-41 (quoting amended charter).

      The portion of the ordinance that requires elections for county constitutional

officers to be held during the primary election conflicts with section 100.041,

which requires county constitutional officers to appear on the general election

ballot. It also conflicts with section 98.015, Florida Statutes, which separately

addresses the election of the supervisor of elections. See § 98.015, Fla. Stat. (“A

supervisor of elections shall be elected in each county at the general election . . .”).

      Even if the portion of the Orange County ordinance that requires such an

election to be held during the primary election is severed, a glaring and

unconstitutional conflict remains. The Orange County ordinance prohibits a

candidate for county constitutional office from being referenced on the ballot by

party or seeking nomination by a party during the primary election. However, the

                                         - 13 -
Florida Election Code expressly provides for nomination of candidates for county

office by their respective political parties during the primary election. See

§ 99.061(2), Fla. Stat. (candidates for county offices may qualify for nomination or

election by filing the qualifying papers and paying “the filing fee and election

assessment, and party assessment”); § 97.021(29), Fla. Stat. (defining “[p]rimary

election” as “an election held preceding the general election for the purpose of

nominating a party nominee to be voted for in the general election to fill a national,

state, county, or district office”); § 100.051, Fla. Stat. (explaining that candidates

listed on the general election ballot include those “candidates who have been

nominated by a political party”); see also § 100.031, Fla. Stat. (“A general election

shall be held in each county . . . to choose a successor to each elective . . .

county . . . officer . . . .”); § 100.041(1), Fla. Stat. (“In each county, a clerk of the

circuit court, sheriff, superintendent of schools, property appraiser, and tax

collector shall be chosen by the qualified electors at the general election in each

year the number of which is a multiple of 4.”); § 98.015(1), Fla. Stat. (“A

supervisor of elections shall be elected in each county at the general election . . .

.”). Therefore, by banning a candidate for county constitutional office from

running by party or seeking nomination by party, the ordinance directly conflicts

with the Florida Election Code. And this Court has explained that a local




                                          - 14 -
government “cannot forbid what the legislature has expressly licensed, authorized

or required.” Rinzler, 262 So. 2d at 668.

      Accordingly, because the Orange County ordinance prohibits candidates

from running based on their party affiliation or seeking the nomination of their

party during the primary election, which is expressly provided for in the Florida

Election Code, the ordinance directly conflicts with the Florida Election Code. It

also conflicts with the Florida Election Code’s requirement that the candidates for

county constitutional officers appear on the general election ballot.

                                   IV. Conclusion

      As explained above, the Florida Election Code expressly preempts the

Orange County ordinance, an ordinance that is in direct conflict with the Florida

Election Code regarding whether candidates nominated by major political parties

in the primary election may appear on the general election ballot for county

constitutional officers. Therefore, we approve the decision of the Fifth District,

which held that the Florida Election Code preempts the Orange County ordinance

requiring nonpartisan elections for county constitutional officers. 5

      It is so ordered.



       5. As we approve the Fifth District’s decision concluding the ordinance is
expressly preempted, we also approve the Fifth District’s decision affirming the
remaining issues presented by Respondents regarding standing, the single-subject
rule, and the ballot title and summary.

                                        - 15 -
CANADY, C.J., and POLSTON, LAWSON, LAGOA, LUCK, and MUÑIZ, JJ.,
concur.
LABARGA, J., dissents with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.

LABARGA, J., dissenting.

      In Orange County v. Singh, 44 Fla. L. Weekly S102 (Fla. Jan. 4, 2019), this

Court held that the Florida Election Code does not expressly preempt the home

rule authority of Orange County to determine that its constitutional officers be

elected in a general election without partisan affiliation.6 I concurred in that

decision, and I continue to agree with the analysis and conclusion reached by the

earlier majority. Accordingly, I dissent from the current majority’s holding that

the nonpartisan-election portion of the Orange County ordinance is preempted by

the Florida Election Code and to the decision of the majority to recall the mandate

issued in this case.

Application for Review of the Decision of the District Court of Appeal –
Constitutional Construction/Direct Conflict of Decisions

      Fifth District - Case Nos. 5D16-2509 and 5D16-2511

      (Orange County)




       6. We further determined a portion of the ordinance that was inconsistent
with the Florida Election Code law was severable, such that the remainder could
stand. Singh, 44 Fla. L. Weekly at S104.


                                        - 16 -
Gregory T. Stewart, Carly J. Schrader, and Evan J. Rosenthal of Nabors, Giblin &
Nickerson, P.A., Tallahassee, Florida; and Jeffrey J. Newton, County Attorney,
and William C. Turner, Jr., Assistant County Attorney, Orange County, Orlando,
Florida,

      for Petitioner

John H. Pelzer of Greenspoon Marder LLP, Fort Lauderdale, Florida; Michael
Marder of Greenspoon Marder LLP, Orlando, Florida; Eric D. Dunlap, Assistant
General Counsel, Orange County Sheriff’s Office, Orlando, Florida; Scott
Randolph, pro se, Orlando, Florida; and Gigi Rollini of Stearns Weaver Miller
Weissler Alhadeff & Sitterson, P.A., Tallahassee, Florida,

      for Respondents Rick Singh, Orange County Property Appraiser, John W.
      Mina, Sheriff of Orange County, and Scott Randolph, Tax Collector of
      Orange County

Nicholas A. Shannin of Shannin Law Firm, P.A., Orlando, Florida,

      for Respondent Bill Cowles, Orange County Supervisor of Elections

Laura Youmans, Legislative Counsel, Florida Association of Counties,
Tallahassee, Florida,

      for Amicus Curiae Florida Association of Counties, Inc.

David H. Margolis, Orlando, Florida,

      for Amicus Curiae Orange County Clerk of the Circuit Court




                                       - 17 -
