This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

FOREIGN FIRE INSURANCE TAXES -- Exempt Volunteer Firemen's Benevolent Association (disposition of interest on investment of tax moneys); (need to be member of association to receive benefits); (use of money for scholarship program)

INSURANCE LAW, §§9104, 9105: The Florida Fire Department Volunteer Exempt Firemen's Benevolent Association may expend foreign fire insurance tax moneys, or any interest earned thereon, to provide college scholarships to disabled or indigent volunteer firefighters and their families. The scholarships must be available to all firefighters for whose benefit the Association was established, without regard to actual membership in the Association.

You ask whether the Florida Fire Department Volunteer Exempt Firemen's Benevolent Association may expend foreign fire insurance tax moneys, or the interest earned thereon, for the purpose of providing college scholarships to high school seniors whose parents are members of the Association.

Insurance Law, §§9104 and 9105 govern the distribution and use of foreign fire insurance tax moneys, except as otherwise provided in any special law. Therefore, when an exempt firemen's benevolent association has been created by special act of the State Legislature and is authorized to receive direct payment of foreign fire insurance tax moneys, the moneys may be expended only in the manner prescribed by the special act (see 1992 Opns St Comp No. 92-7, p 14; 1991 Opns St Comp No. 91-29, p 84; 1989 Opns St Comp No. 89-11, p 23; 1983 Opns St Comp No. 83-120, p 151; 1981 Opns St Comp No. 81-328, p 357). Similarly, we have expressed the opinion that any interest earned on foreign fire insurance tax moneys may also be expended only in the manner prescribed by the special act (see 1982 Opns St Comp No. 82-334, p 424).

The Florida Fire Department Volunteer Firemen's Benevolent Association was incorporated by chapter 539 of the Laws of 1975. Section 7 of that law authorizes the Association to receive foreign fire insurance tax moneys and to use such moneys as follows:

... Such taxes shall only be used for the care and relief of disabled or indigent volunteer firemen and their families.

Thus, the Association may expend foreign fire insurance tax moneys, and any interest earned thereon, only for the care and relief of a disabled or indigent volunteer firefighter and his or her family. Moreover, since the special act does not restrict the use of foreign fire insurance tax moneys to members of the Association, the care and relief provided with such moneys must be available to all the disabled or indigent volunteer firefighters and their families for whose benefit the act was enacted (see L 1975, ch 539, §2), without regard to whether the firefighters are members of the Association (see 1991 Opns St Comp No. 91-59, p 161; 1983 Opns St Comp No. 83-33, p 38).

The special act incorporating the Association also does not define the phrase "care and relief", nor are we aware of any judicial construction of that phrase. We note, however, that at least one court has observed that the word "'relief' signifies the 'removal in whole or in part of any evil or hardship that afflicts body or mind; especially, the partial removal of pain, grief, want, care, anxiety, toil, or anything distressing or burdensome, so that some ease is obtained'" (In re McCormick's Estate, 169 Misc 672, 675, 8 NYS2d 179, 1983, see also Opn No. 92-7, supra). Thus, the word "relief" seems broad enough to encompass college scholarships.

In support of this conclusion, we note that there are a number of statutes which provide for direct or indirect financial assistance to enable college or community college attendance by, among others, individuals receiving various forms of public assistance (see Social Services Law, §§331[1], 336[1][a], 336-a; see also 18 NYCRR 385), individuals who are "economically and educationally disadvantaged" (see Education Law, Article 130 [§6451 et seq]; see also 8 NYCRR 27), and the children of volunteer firefighters who have died as a result of an injury sustained in the line of duty (see Education Law, §668-a[1]). These statutes suggest that the provision of financial aid for college attendance can constitute a form of "relief". Further, several courts have recognized, in connection with child support proceedings, the increasing need of a higher education to attain success in today's society (see Giuffrida v Giuffrida, 81 AD2d 905, 439 NYS2d 398; F.L.C. v E.W.P., 49 AD2d 263, 374 NYS2d 193; Hoffman v Hoffman, 130 Misc 2d 701, 497 NYS2d 259, modified 122 AD2d 583, 505 NYS2d 273, lv dismissed 69 NY2d 705, 512 NYS2d 1029; Roth v Roth, 98 Misc 2d 618, 414 NYS2d 485; cf., e.g., Stefani v Stefani, 166 AD2d 577, 560 NYS2d 862; Montagnino v Montagnino, 163 AD2d 598, 559 NYS2d 37; Haimowitz v Gerber, 153 AD2d 879, 545 NYS2d 599; Keehn v Keehn, 137 AD2d 493, 524 NYS2d 238, pertaining to when a non-custodial parent has a duty to contribute towards a child's college education as an element of support).

Accordingly, based on the foregoing, it is our opinion that the Association may use foreign fire insurance tax moneys, or any interest earned thereon, to provide college scholarships to disabled or indigent volunteer firefighters and their families. It is also our opinion, however, that the Association may not use such funds to provide scholarships in the absence of disability or indigency, or limit the availability of scholarships based on membership in the Association.

March 11, 1993
Jack Youchah, Treasurer
Florida Exempt Firemen's Benevolent Association