Monday, October 07, 2019


Earlier this year, first-year St. Augustine City Commissioner JOHN OTHA VALDES suggested that non-resident business owners be permitted to vote in City elections -- this is patently illegal.  Third generation Florida building contractor JOHN VALDES \never apologized for this violation of election law to favor nonresident business owners who don't live in our Nation's Oldest City.

Interim Mayor Tracy Upchurch would not recognize me to speak in response to VALDES' ukase at a special Commission meeting on the Charter, in which VALDES raised his trial balloon after the only allotted public comment period.

A business address is not a legal residential address for voting purposes.

For several weeks, I've been investigating the voting status of controversial St. Augustine Port, Waterway and Beach District Chairman BARRY MARK BENJAMIN, who lives with his wife and mother in Jacksonville, but claims voting residence at a marina located at 65 Lewis Blvd.-- commercial property.  

Waiting on documents from the City, Port District and investigative agencies. Watch this blog.

From our Florida Secretary of State Division of Elections, here's the pertinent law on who is a legal resident for voting purposes, stating inter alia, in haec verba:

A business address is not a satisfactory legal residential address. However, although not the rule, if the person is able to prove residence there despite the zoning ordinance, a fact-finding body could determine that the business address is the person’s legal residential address.4  (Emphasis added). 

DE Reference Guide 0003 (Updated 07/2018)
These guidelines are for reference only. They are not to be construed as legal advice or representation. For any particular set of facts or circumstances, refer to the applicable state, federal law, and case law, and/or consult a private attorney before drawing any legal conclusions or relying upon this information.
  •   Legal residence - Permanent. Legal residency is not defined in law. However, over the years, the courts and the Florida Department of State/Division of Elections’ have construed legal residency to be where a person mentally intends to make his or her permanent residence for purposes of registration.Additional evidence of such intent can come from items or activities such as obtaining a Florida driver’s license and listed residential address2, paying tax receipts, paying bills for residency (light, water, garbage service) and receiving mail at address, claiming the property as homestead,declaring the county as domicile, and doing other activities indicative or normally associated with home life. Therefore, legal residence is a convergence of intent and fact. Once residency is established for voting purposes, it is presumptively valid or current until evidence shows otherwise. See Op. Atty Gen. Fla. 055-216 (August 26, 1955). A business address is not a satisfactory legal residential address. However, although not the rule, if the person is able to prove residence there despite the zoning ordinance, a fact-finding body could determine that the business address is the person’s legal residential address.4  (Emphasis added).
  •   Legal residence - Temporarily Out-of-County. A person who has no permanent address in the county but intends to remain a resident of Florida and the county in which he or she is registered must be re-assigned to theSupervisor of Elections’ main office address and corresponding precinct. (Section 101.045, Fla. Stat.) The person has to have had some prior physical presence and residence in the county. Such persons though cannot vote in the municipal elections.
  •   Legal residence - Mobile. For a person with a nontraditional abode (e.g., boat, motor home, etc.) who has or had physical presence in the county and intends for the county to be his or her permanent residence, acceptable addresses for voter registration purposes could include: 1) the place where messages are regularly received,2) the general delivery address at a specific post office, or 3) the address for the campground or docking site (if mail is received there). Please note Supervisors of Elections have a duty per s. 98.045, F.S., to determine whether a person is eligible or not. If it appears that the address is not a residential address or cannot be determined to be a residential address, a Supervisor may ask the applicant for more information to determine if the applicant is a legal resident of the county. For example, if the applicant provides an address of a mail forwarding company as his or her residential address, the Supervisor may ask the applicant what other meaningful contacts exist to support the applicant’s prior or present physical presence in the county and intent to be a permanent residence of the county. See DE 18-09. For those mobile applicants who are legal residents of the county but who do not
    See Op. Div. Elect. Fla. 93-05, 80-27; 78-27, 16-01, and 18-09; Walker v. Harris, 398 So. 2d 955 (Fla. 4th DCA 1981); and Cruickshank v. Cruickshank, 420 So. 2d 914 (Fla. 1st DCA 1982). Bloomfield v. City of St. Petersburg, 82 So.2d 364 (Fla. 1955); Ogden v. Ogden, 33 So.2d 870 (Fla. 1947); Herron v. Passailaigue, 110 So. 539 (Fla. 1926).
    Under Florida law, you cannot have two valid driver licenses for different states at the same time.
    For homestead exemption claims, “permanent residence” is defined as the place where a person has his or her true, fixed, andpermanent home and principal establishment to which, whenever absent, he or she intends to return. A person can only haveone permanent residence at a time. Once established, the status continues until the person shows that a change has occurred.”See s. 196.012, F.S. Permanent residence is a factual determination by the property appraiser. See s. 196.015, F.S.
    Andrews v. Hartzog, Case No. 38-2008-CA-000032 (8th Cir. Levy County, Florida 2008)
    A mail-forwarding service company’s address alone is not sufficient evidence of legal residential address for purposes of voter registration and should not be used to create a fictional residential presence in the county when the voter has no past or present physical presence and no other meaningful contacts in the county (see DE 18-09).
Florida Department of State Page 1 of 3
maintain a permanent presence in the county, such persons are temporarily residing out-of-county and should be processed per Section 101.045, Fla. Stat.
  •   Legal residence - Homeless. It is against Florida and federal laws to discriminate against a homeless person. The voter registration laws cannot be applied in a manner to deny such person the right to register to vote.6Therefore, a person who is homeless or without a permanent ‘traditional’ home but intends to remainpermanently in the locale can register using an address for: 1) place where he or she regularly receives messages, 2) the church if it agrees to accept mail or messages on the person’s behalf, 3) the shelter or other local that aperson frequents and could be reached, 4) the specific post office for general delivery. It may even be a specific street corner, park bench, vacant lot, etc., to where the person frequently rests or returns and intends to serve asthe “home-base”.The point is to be able to locate and assign a precinct to correspond with that location.
  •   Legal residence - Military /uniformed services personnel and family members (FVAP/UOCAVA).In order to claim a specific Florida county as residence, a person:
    1. Must have or had physical presence in the state and simultaneously have the intent to remain or make the
      Florida his or her home or domicile.
    2. May only have one legal residence at a time, but may change residency each time he or she is transferred
      to a new location.
    3. Must make a conscious decision to change residency as exemplified by such acts as registering to vote,
      registering a car, qualifying for in-state tuition, etc.
    4. May not revert to the previous residence without re-establishing new physical presence and intent to
      remain or return.
    Uniformed service personnel and their family members cannot arbitrarily choose which state to declare as their legal voting residence without first meeting the state's residency requirements. Marriage to an active duty member does not automatically confer the same legal residence. Florida’s intent and physical presence criteria must still be met independently. A minor typically assumes either one of the parent’s legal residence. Therefore, it is possible for members of the same military family to have different legal residences. Once a minor becomes 18, he or she can establish his or her own residency (which can be different from either parent), provided he or she has physical presence and intent to remain or return.
    The Military Spouse Residency Relief Act of 2009(MSRRA)gives a military spouse the right to retain residency status (for voting or taxation purposes) in the same state as the military member when the couple has to relocate from the state due to military orders. It presumes that the couple share the same domicile/legal residency state for voting (and/or taxation purposes) in the first place which is not always the case. If they didn’t have the same state domicile/legal residency state to begin with or they abandoned the residency state, the military spouse (and/or dependent family member) cannot pick and choose state of residency, the person would have to independently meetthe state’s residency requirements before being able to retain the residency in the state before relocating.
DE 89-04 and 90-07 at:
Note that the NVRA national mail-in registration form includes a part where an applicant can draw a map to where they live in response to non-traditional types of residential addresses. Supervisors of elections may have to work with their respective post office/voting liaison officer to prevent additional requirements that may have unintended consequences for the homeless voter applicant or registered voter.
Federal Voter Assistance Program at and and Uniform and Overseas Citizens Absentee Voting Act (UOCAVA) at
Public law 111-97 (eff.11/15/09 bin/getdoc.cgi?dbname=111_cong_bills&docid=f:s475enr.txt.pdf ; Senate Report 111-46 regarding MSRRA;
Florida Department of State Page 2 of 3
 Legal residence - Overseas Citizens.10 An overseas citizen’s residence is the last state in which he or she resided immediately prior to leaving the U.S. This right extends to an overseas citizen even if he or she no longer owns property or has no other ties to the last state of residence and his or her intent to return to that state may be uncertain. In the latter case, such overseas citizen is technically temporarily residing outside the county and could not vote in municipal elections. 11 Where a person registers/votes is a factor used to determine residency under federal, state or local tax laws except when exercising the right to vote solely in elections for federal offices.
 Legal residence - U.S. citizen born or living abroad. A U.S. citizen who is born or living abroad and has never lived in Florida is not permitted to register or vote in Florida under current Florida law.
 Legal residence - College/University Student.12 Students constitute a significant percentage of 1st timeregistrants/voters. A student’s residential address is the address the student intends to be his or her permanent address as stated on the applicationjust like any other applicant who affirms indefinitely a Florida legal residential address and no matter how long he or she ends up staying (the student may leave for a summer or after 2 or 4 years). A communal university mail address is satisfactory, even if the driver’s license lists a different address.13

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