IN THE SUPREME COURT OF FLORIDA. Appellant, Lower Tribunal Case No. vs. 06 CA

Transcription

1 IN THE SUPREME COURT OF FLORIDA SCOTT ELLIS, in his capacity as CLERK OF THE BREVARD COUNTY CIRCUIT COURT, Case No.: SC Appellant, Lower Tribunal Case No. vs. 06 CA BREVARD COUNTY, FLORIDA, Appellees. / REPLY/ANSWER BRIEF OF APPELLANT/CROSS-APPELLEE SCOTT ELLIS, IN HIS CAPACITY AS CLERK OF THE BREVARD COUNTY CIRCUIT COURT On Direct Review from the 18th Judicial Circuit Court, in and for Brevard County, Florida Christine R. Davis Joseph C. Mellichamp, III Florida Bar No Florida Bar No CARLTON FIELDS, P.A. THE LEVY LAW FIRM 215 S. Monroe St., Suite Riggins Lane Tallahassee, Florida Tallahassee, Florida Telephone: (850) Telephone: (850) Facsimile: (850) Facsimile: (850) Attorneys for Appellant, Scott Ellis, in his capacity as Clerk of the Brevard County Circuit Court

2 TABLE OF CONTENTS TABLE OF AUTHORITIES...ii PRELIMINARY STATEMENT...iv STATEMENT OF THE CASE AND FACTS...1 SUMMARY OF THE ARGUMENT...1 ARGUMENT...4 I. THE TRIAL COURT ERRED IN RULING THAT THE PROPOSED BOND ISSUES WERE LAWFUL UNDER BOTH THE AUTHORIZING STATUTE AND THE COUNTY S CHARTER...4 II. THE TRIAL COURT CORRECTLY RULED THAT WHETHER SURPLUS REVENUE FROM A SEPARATE REFERENDUM MAY BE USED FOR DEBT SERVICE ON THE PROPOSED BOND ISSUE WAS NOT A PROPER ISSUE IN A BOND VALIDATION PROCEEDING...8 A. Standard of Review...8 B. The trial court could not consider whether surplus revenue could be used to pay proposed bonds in this validation proceeding....8 C. Surplus revenue from the 2001 ad valorem bond referendum issued by the Special Districts cannot be used for debt service on the 2006 proposed sales tax revenue bonds issued by the County...13 CONCLUSION...17 CERTIFICATE OF SERVICE...19 CERTIFICATE OF TYPE SIZE AND FONT COMPLIANCE...19 i

3 TABLE OF AUTHORITIES STATE CASES Boschen v. City of Clearwater, 777 So. 2d 958 (Fla. 2001). 4, 10 Beach v. Great Western Bank, 692 So. 2d 146 (Fla. 1997) City of Orlando v. State, 67 So. 2d 673 (Fla. 1953) Dickinson v. Stone, 251 So. 2d 269 (Fla. 1971) Grapeland Heights Civil Ass n v. City of Miami, 267 So.2d 321 (Fla. 1972)... 6 Keys Citizens for Responsible Gov t, Inc. v. Fla. Keys Aqueduct Auth., 795 So. 2d 940 (Fla. 2001)... 8 McCoy Restaurants, Inc. v. City of Orlando, 392 So. 2d 252 (Fla. 1980)... 8, 12 McGurn v. Scott, 596 So. 2d 1042 (Fla. 1992) Merrell v. City of St. Petersburg, 76 So. 699 (Fla. 1917)... 7 Munnerlyn v. Wingster, 825 So.2d 481 (Fla. 5th DCA 2002)... 8 Nikolits v. Nicosia, 682 So.2d 663 (Fla. 4th DCA 1996)... 5 Oven v. Ausley, 143 So. 588 (Fla. 1932) Palm Beach Polo, Inc. v. Village of Wellington, 918 So.2d 988 (Fla. 4th DCA 2006)... 5 Panama City Beach Cmty. Redevelopment Agency v. State, 831 So. 2d 662 (Fla. 2002)... 4, 10 Quincy Corp. v. Aguilar, 704 So. 2d 1055 (Fla. 1st DCA 1997)... 5 Sanchez v. Fernandez, 915 So. 2d 192 (Fla. 4th DCA 2005)... 8 Sierra v. Public Health Trust of Dade County, 661 So. 2d 1296 (Fla. 3d DCA 1995) State v. Alachua County, 335 So. 2d 554 (Fla. 1976) ii

4 State v. City of Daytona Beach, 33 So.2d 218 (Fla. 1948)... 7 State v. City of Miami, 103 So. 2d 185 (Fla. 1958) State v. Dade County, 39 So. 2d 807 (Fla. 1949)... 6 State v. Dade County, 70 So. 2d 837 (Fla. 1954) State v. Halifax Hosp. Dist., 159 So. 2d 231 (Fla. 1963) Supreme Forest Woodmen Circle v. Hobe Sound Co., 189 So. 249 (Fla. 1939) Taylor v. Lee County, 498 So. 2d 424 (Fla. 1986) Town of Palm Beach v. Palm Beach County, 460 So. 2d 879 (Fla. 1984)... 7 Turner v. City of Clearwater, 789 So. 2d 273 (Fla. 2001).. 4, 11 Warner Cable Communications Inc. v. City of Niceville, 520 So. 2d 245 (Fla. 1988) STATUTES AND RULES , Fla. Stat.... passim , Fla. Stat.... 7, 9 Fla. R. App. P iii Fla. R. App. P iii

5 PRELIMINARY STATEMENT Appellant, Scott Ellis, in his capacity as Clerk of the Brevard County Circuit Court is referred to as the Clerk or Mr. Ellis. Appellee, Brevard County, Florida, acting through its Board of County Commissioners is referred to as the Commission or Brevard County Commission. Pursuant to Florida Rule of Appellate Procedure 9.110(j), the record on appeal is not transmitted to the Court unless ordered by the Court. Pertinent record materials were included in the appendix accompanying the Initial Brief filed by Mr. Ellis. Citations to the record throughout this brief will therefore refer to that Appendix. In addition, Mr. Ellis has filed a Motion to Supplement the Appendix simultaneously with this appeal relating to record evidence relevant to the crossappeal. The resolution contained in that Appendix is cited as Supp. App. All emphasis is added unless otherwise indicated. iv

6 STATEMENT OF THE CASE AND FACTS Mr. Ellis relies on the Statement of the Case and Facts as set forth in his Initial Brief. Mr. Ellis points out only that on pages 4-5 of the Commission s Initial/Answer Brief, the Commission states as a fact that no referendum was required to issue the bonds in this case. It cites the Final Judgment as evidence of that fact. Whether the trial court erred in ruling that a referendum was not required is an essential issue in this appeal and is not an established fact. SUMMARY OF THE ARGUMENT The Commission s argument focuses entirely on the deference that should be accorded local government officials in the application of their regulations. The Commission contends that the projects at issue in this case are separate and distinct because the resolutions adopting the proposed bonds contain an arbitrary statement to that effect. The Commission fails, however, to respond to the evidence cited by Mr. Ellis in his Initial Brief demonstrating that the purpose of enacting three resolutions for three bond issuances was to avoid the requirement in the Brevard County Charter to hold a referendum. Deference is not to be given where local government action was for the sole purpose of accomplishing an improper goal or manipulating the County Charter. That is precisely what exists 1

7 here, and this Court should reverse the trial court s order validating the proposed bonds. With respect to the issue cross-appealed by the Commission, the trial court correctly ruled that whether the Commission could use surplus revenues from the ad valorem bonds issued by the Special Districts in 2001 to pay debt service on the sales tax revenue bonds proposed to be issued by the Commission was collateral to the bond validation proceeding. This Court has repeatedly recognized that no jurisdiction exists over issues collateral to the validation of a bond. Indeed, in accordance with the trial court s order, the Commission filed a separate action in the trial court on this issue on June 28, Moreover, even if the trial court erred in not considering this issue (which it did not), the only relief available to the Commission is for this Court to remand the case to the trial court for consideration of the issue. An appellate court will not decide the merits of an issue that was not ruled upon by the trial court in the first instance. Finally, although not properly before this Court, the surplus revenue issue is without merit. Section (3), Florida Statutes, by its express language, does not authorize a County to use ad valorem revenue obtained by a separate entity - - a Special District -- to repay sales tax revenue bonds issued by the County. Moreover, tax revenue may only be expended for 2

8 the specific purpose for which it was collected. The 2001 resolutions make clear that the ad valorem revenues may not be used for the purpose submitted by the Commission. Lastly, the use of any device whereby ad valorem tax revenues are pledged -- directly or indirectly -- requires a referendum under article VII, section 12 of the Florida Constitution. Even if section permitted the Commission to use surplus ad valorem revenues to repay the sales tax revenue bonds (which it does not), the ad valorem revenues cannot be used without a referendum. 3

9 ARGUMENT I. THE TRIAL COURT ERRED IN RULING THAT THE PROPOSED BOND ISSUES WERE LAWFUL UNDER BOTH THE AUTHORIZING STATUTE AND THE COUNTY S CHARTER While a final judgment validating bonds comes to this Court clothed with a presumption of correctness, this Court performs a comprehensive de novo inquiry with respect to the legal conclusions rendered by the trial court. Panama City Beach Community Redevelopment Agency v. State, 831 So. 2d 662, 665 (Fla. 2002); Boschen v. City of Clearwater, 777 So. 2d 958 (Fla. 2001). The trial court s order will not be affirmed when it is not supported by the record and evidence. Turner v. City of Clearwater, 789 So. 2d 273, 277 (Fla. 2001). The Commission s entire argument focuses on the deference required to be given to a county s application or interpretation of its own Ordinances and Charter. The Commission s argument, however, misses one crucial point -- deference is not to be given when the County s application of its Charter is wholly improper and inconsistent with the provisions of the Charter and the intent of its citizens. The evidence in this case shows that the Commission s motives in enacting three separate resolutions to fund one countywide parks and recreation program was impure, with the sole purpose being to avoid a referendum. Indeed, the Commission expressly recognized that it could in fact complete the projects with the funds obtained from the

10 referendum, it just could not complete the projects within a timeframe that it believed was reasonable. 1/10/06 Agenda Report (App. C). The Commission does not respond to the evidence cited by Mr. Ellis demonstrating that the Commission s sole purpose in enacting three separate resolutions was to circumvent the County s Charter. It simply points to conclusory statements by the Commission and the County Parks and Recreation Department that the projects are separate and distinct. While the evidence does contain this arbitrary statement, it also plainly states that the purpose underlying the resolutions was to separate the program into three projects to avoid a referendum. 1/10/06 Agenda Report (App. C); 3/3/06 Comm n Memo (App. H); 3/17/06 Comm n Memo (App. G); Brevard County Adopted Annual Operating Budget, at 41 (App. Q). This Court should not defer to the County s arbitrary statement regarding whether the resolutions were for separate projects when the evidence so clearly demonstrates that the statement was made for the purpose of accomplishing an improper goal. Palm Beach Polo, Inc. v. Village of Wellington, 918 So. 2d 988, 995 (Fla. 4th DCA 2006) (recognizing that deference should not be given if factual findings are not supported by the evidence); Quincy Corp. v. Aguilar, 704 So. 2d 1055, 1060 n.7 (Fla. 1st DCA 1997) (same); Nikolits v. Nicosia, 682 So. 2d 663 5

11 (Fla. 4th DCA 1996) (same). Contrary to the Commission s statements, it does not have the discretion to artificially separate projects when the purpose for such separation is to avoid the requirements of its own Charter. Moreover, the single purpose cases discussed in Mr. Ellis s Initial Brief are not off-point. While, as Mr. Ellis recognized in his Brief, those cases were concerned with the single purpose rule, a doctrine that seeks to prevent logrolling, the Court s analysis of whether the projects were related or constituted a single purpose is instructive here. Those cases demonstrate that several county improvement objectives, similar to those at issue in this case, constitute one project or scheme for the purpose of issuing a bond. Grapeland Heights Civil Ass n v. City of Miami, 267 So. 2d 321 (Fla. 1972) (holding that separate recreation facilities in various parts of the county constituted a single purpose); State v. Dade County, 39 So. 2d 807 (Fla. 1949) (holding that five separate bridges throughout county was party of a single, comprehensive plan of bridge and road construction throughout the county). The proposed bonds in this case are for the purpose of implementing a single, comprehensive plan of providing parks and recreation facilities throughout the county. 1/10/06 Agenda Report (App. C); 3/3/06 Comm n Memo (App. H); 3/17/06 Comm n 6

12 Memo (App. G). They cannot be artificially separated for the sole purpose of avoiding a referendum. See State v. City of Daytona Beach, 33 So. 2d 218 (Fla. 1948); Merrell v. City of St. Petersburg, 76 So. 699 (Fla. 1917) (holding that several improvements throughout the county constituted one overall scheme or project). The Commission should not be permitted to manipulate the terms of its own Charter or circumvent the will of its citizens by using artful language to avoid a referendum when it chooses. The Commission should not be permitted to exercise its authority unreasonably in a way that renders the terms of its own Charter meaningless. Ellis IB, at Finally, the case cited by Mr. Ellis in his Initial Brief makes clear that a park that benefits only one section of the county does not constitute a countywide benefit. Town of Palm Beach v. Palm Beach County, 460 So. 2d 879 (Fla. 1984). If the trial court was correct in concluding that the objectives of the bonds were for separate and unrelated projects, then the projects would not constitute a countywide program. Whether the parks will benefit the entire county is indeed relevant to a bond validation proceeding because these bonds are proposed to be issued under section , Florida Statutes, which requires that half-cent sales tax revenues be used for a countywide program. 7

13 II. THE TRIAL COURT CORRECTLY RULED THAT WHETHER SURPLUS REVENUE FROM A SEPARATE REFERENDUM MAY BE USED FOR DEBT SERVICE ON THE PROPOSED BOND ISSUE WAS NOT A PROPER ISSUE IN A BOND VALIDATION PROCEEDING A. Standard of Review This Court has repeatedly recognized that courts do not have jurisdiction to consider issues collateral to a bond validation proceeding. Keys Citizens For Responsible Government, Inc. v. Fla. Keys Aqueduct Auth., 795 So. 2d 940, 945 (Fla. 2001); McCoy Restaurants, Inc. v. City of Orlando, 392 So. 2d 252, 253 (Fla. 1980). Some district courts have held that a trial court s determination as to whether it had subject matter jurisdiction over an issue is reviewed for an abuse of discretion, Munnerlyn v. Wingster, 825 So. 2d 481, 482 (Fla. 5th DCA 2002), and others have held that the review is de novo, Sanchez v. Fernandez, 915 So. 2d 192, 192 (Fla. 4th DCA 2005). Under either standard of review, the trial court correctly ruled that the surplus revenue issue was collateral to the bond validation proceeding. B. The trial court could not consider whether surplus ad valorem revenue could be used to pay the proposed sales tax revenue bonds in this validation proceeding. Not one case cited by the Commission in support of its argument that the trial court should have considered whether surplus ad valorem revenue from the 2001 bonds could be used to pay off the 2006 proposed sales tax revenue bonds stands for the 8

14 proposition that the Commission contends. In none of those cases did this Court consider whether the bonds proposed could properly be repaid from a source other than that specified in the enacting Ordinance. The trial court in this case correctly ruled that this issue should be considered in a future proceeding. Indeed, Brevard County has filed a separate complaint in the trial court directly addressing this issue. Brevard County v. Ellis, No CA (Fla. 18th Cir. Ct. complaint filed June 28, 2006). Resolutions , , and , which adopt the bonds in this case, state that the bonds are to be paid back from sales tax revenues as authorized by section , Florida Statutes. App. M. In its complaint, however, the Commission requested that the Court determine whether section (3), Florida Statutes, permits surplus ad valorem millage revenue received by the Special Districts pursuant to the 2001 referendum may be used by the County for the debt service, interest, and principal repayment of the proposed 2006 Sales Tax Revenue Bonds. App. N, at 11. In effect, the County was requesting a declaratory judgment that the surplus millage from the 2001 bonds could be used for repayment of the 2006 bonds. 1 1 Indeed, the Commission really appears to be requesting an advisory opinion because it simply requested the court to prospectively rule that the Commission could use the surplus revenue if it so chose. The Commission may not even decide to 9

15 A court s review in a bond validation proceeding is sharply limited to three inquiries: (1) whether the public body has the authority to incur the obligation or to issue the bonds, (2) whether the purpose of the bond is legal, and (3) whether the bond issuance complies with the requirements of law. Boschen, 777 So. 2d at 958; Taylor v. Lee County, 498 So. 2d 424, 425 (Fla. 1986). It was never intended that proceedings instituted to validate bonds would be used to decide collateral issues or issues not going directly to the power to issue the securities and the validity of the proceedings relating thereto. State v. City of Miami, 103 So. 2d 185, 188 (Fla. 1958); see also Panama City Beach Community Redevelopment Agency v. State, 831 So. 2d 662, 665 (Fla. 2002) (recognizing that the court will not consider questions outside the limited three-part inquiry in bond validation proceedings; therefore questions concerning the financial and economic feasibility of a proposed plan are beyond the scope of judicial review in a validation proceeding); Warner Cable Communications Inc. v. City of Niceville, 520 So. 2d 245 (Fla. 1988) (same); Taylor, 498 So. 2d at 425 ( Although generation of revenue to fund this bond issue [for the repair, maintenance, and operation of transportation facilities] depends on the county s authority to impose tolls, placing a toll on an use the surplus revenue to pay off the bonds. App. N, at 11 (stating that the County could use surplus revenue at its option ). 10

16 existing toll-free bridge is collateral to this bond validation... and outside the scope of this case. ). Contrary to the Commission s suggestion at page 22 of its brief, this Court has not considered the propriety of using alternative sources to repay a bond in a bond validation proceeding. In the cases cited by the Commission, this Court considered whether the bonds could be adopted without a referendum as required under Florida s constitution. In those cases, the Court merely acknowledged the source of repayment of the bonds because that was necessary to determine whether the constitution required a referendum to be held. See Turner v. City of Clearwater, 789 So. 2d 273, 277 (Fla. 2001) (referencing source of payment of bond only to determine whether referendum was required, not whether source of payment was permissible); State v. Alachua County, 335 So. 2d 554, 557 (Fla. 1976) (same); State v. Dade County, 70 So. 2d 837, 840 (Fla. 1954) (same) City of Orlando v. State, 67 So. 2d 673, 674 (Fla. 1953) (same). The Court did not consider whether it was proper for the counties in those cases to use that source of funding to repay the bonds, nor could it have since that issue is outside the scope of the limited three-part inquiry. The trial court in this case correctly ruled that the surplus millage issue was not proper in a bond validation proceeding and that the court could directly address the issue 11

17 in a separate action brought in that Court -- an action that the Commission has already brought in accordance with the trial court s order. The sole purpose of a validation proceeding is to determine whether the issuing body had the authority to act under the constitution and laws of the state and to ensure that it exercised that authority in accordance with the spirit and intent of the law. McCoy Restaurants, Inc. v. City of Orlando, 392 So. 2d 252 (Fla. 1980). Whether section (3) authorizes a separate source of repayment of the bonds is unrelated to that inquiry. Moreover, even if the trial court erred in ruling that this issue was collateral to the bond validation proceeding, which it did not, the only remedy available to the Commission is for this Court to remand to the trial court for further consideration of the issue. The trial court did not rule on whether section (3) permits the Commission to use the surplus revenue to pay debt service on the 2006 proposed bonds. As a general rule, an appellate court will not decide the merits of an issue that was not ruled on by the trial court in the first instance. McGurn v. Scott, 596 So. 2d 1042, 1043 (Fla. 1992); Sierra v. Public Health Trust of Dade County, 661 So. 2d 1296 (Fla. 3d DCA 1995). 12

18 C. Surplus revenue from the 2001 ad valorem bond referendum issued by the Special Districts cannot be used for debt service on the 2006 proposed sales tax revenue bonds issued by the County. Even if this Court could decide the merits of the surplus revenue issue (which it cannot, as indicated above), the issue is without merit. Mr. Ellis acknowledges that this Court will not consider whether the issuance of a bond is a sound professional judgment or policy decision, but that is not the issue here. The issue is whether section (3) gives the Commission legal authority to use surplus ad valorem revenue from bonds issued and collected by the Special Districts 2 to repay the 2006 sales tax revenue bonds issued by the County. It does not. Section (3) unambiguously authorizes a county or municipality to use surplus funds for a lawful purpose as long as it relates solely to the capital project. The statute provides, in pertinent part: A county or municipality may levy voted millage at the maximum millage rate approved by referendum even if the levy would raise revenue in excess of that necessary for debt service as authorized by a vote of the electors pursuant to s. 12, Art. VII of the State Constitution. The county or municipality may use the surplus revenue for 2 Both Mr. Ellis and the Commission mistakenly stated that Brevard County adopted the 2001 bond resolutions and issued the bonds. As those resolutions expressly recognize, the Special Districts created by the County as separate entities issued the bonds and collected the revenues. App. F, at

19 any lawful purpose solely related to the capital project for which the voted millage was approved, including operations and maintenance. 3 The Commission, however, seeks to use surplus revenues not collected by a county or municipality as required by statute, but by a separate entity, to pay debt service on an unrelated bond issue. This is not permitted under the plain language of the statute. Moreover, the ordinances adopting the 2001 bonds make clear that the surplus ad valorem revenues from the 2001 bonds may not be applied for a purpose other than repaying those ad valorem bonds or for the operation and maintenance of the recreational facilities funded by those bonds. The revenues may not be given to or used by another entity for which no ad valorem tax was authorized. For example, subsequent to the November 2000 elections at which the 2001 bonds were approved by the voters, the Commission approved and adopted Ordinance (Supp. App.), which created the North Brevard Recreation Special District based upon 3 Notably, in subsection (1) of the statute, the Legislature included special districts as those entities not limited in the amount of ad valorem tax that they can impose. It did not include special districts in subsection (3), which permits counties and municipalities to use surplus revenue. If the Legislature had intended to authorize special districts to use surplus revenues, it would have so specified. Beach v. Great Western Bank, 692 So. 2d 146 (Fla. 1997). 14

20 a finding of referendum approval. 4 Section 6 of that Resolution explained that the funds obtained from the levied ad valorem tax should only be applied to either (1) repay those ad valorem bonds, not other bonds issued by another entity; or (2) operate or maintain the recreational facilities being funded by the ad valorem bond revenues. It provides: Section 6. Disposition of Proceeds from Levy of Taxes for Recreational Services. Those funds obtained from the levy of an ad valorem tax on all property within the boundaries of said district shall be maintained in a separate account and used solely for the purpose of providing recreational facilities, or repayment of bonds related to such recreational facilities, and for operation and maintenance of such facilities within the boundaries of said district. Likewise, section 8 recognized that the voters approved a limitation on the use of the millage revenues. Section 8. Finding of Referendum Approval. The North Brevard Recreation Special District received bond referendum approval on November 7, 2000, from qualified voters within the territorial limits of the North Brevard Recreation Special District, for the issuance of not to exceed $15,100,000 limited ad valorem tax bonds of the District, to be secured by a special millage of up to.8 mills. 4 The Ordinances creating the North Brevard Special District and the ordinance by which the North Brevard Special District adopted the 2001 ad valorem bonds are used to illustrate the point at issue here. The resolutions relating to the Central Brevard Special District and the South Brevard Special District contained the exact same language, as stipulated by the parties at the hearing below. 15

21 Additionally, the referendum under which the bonds were approved by the citizens of Brevard County expressly represented that the bond funds would only be used for the restrictive purpose of repaying those ad valorem bonds or for the operation and maintenance of such recreational improvements. App. E; App. K. The amount of the bond was not to exceed $15,100,000. App. E.; App. F. Florida courts have long recognized that tax revenue must be expended only for the purpose for which they were collected - - that is, funds raised by taxation for one purpose cannot be diverted to another use. When an enforced contribution is exacted from the people by the power of taxation, it is for a specific public purpose, and the fund so raised is a trust fund in the hands of the legal custodians of it. There may exist circumstances in which the fund may be diverted to some other lawful purpose than that for which it was raised. Appropriation of public moneys for certain public purposes involves the power of taxation, and when the money is taken from a funds created by the levy of a tax and applied to some other purpose, it is equivalent to the levy of a tax for such purpose. The limitation upon the rate of taxation is for the protection of taxpayers and to secure economy in the expenditure of public moneys. Oven v. Ausley, 143 So. 588, (Fla. 1932); see also Dickinson v. Stone, 251 So. 2d 269 (Fla. 1971); Supreme Forest Woodmen Circle v. Hobe Sound Co., 189 So. 249 (Fla. 1939). 16

22 Finally, this Court has held that the use of any device whereby the use of ad valorem tax revenues are pledged -- directly or indirectly -- must meet voter approval under article VII, section 12 of the Florida Constitution. State v. Halifax Hosp. Dist., 159 So. 2d 231, 232 (Fla. 1963). The Commission here seeks to indirectly use ad valorem tax revenues to pay debt service on another type of bond. Thus, even if section (3) authorized the Commission to use surplus ad valorem revenue collected by the Special Districts to pay sales tax revenue bonds issued by the County (which it does not, as demonstrated above), the County would be required to hold a referendum and obtain voter approval of the use of the ad valorem tax revenue. It has not done so. CONCLUSION Based on the foregoing, Mr. Ellis respectfully requests that this Court reverse the trial court s order validating the proposed sales tax bonds. 17

23 Respectfully submitted, Christine R. Davis Joseph C. Mellichamp, III Florida Bar No Florida Bar No CARLTON FIELDS, P.A. THE LEVY LAW FIRM 215 S. Monroe St., Suite Riggins Lane Tallahassee, Florida Tallahassee, Florida Telephone: (850) Telephone: (850) Facsimile: (850) Facsimile: (850) Attorneys for Appellant, Scott Ellis, in his capacity as Clerk of the Brevard County Circuit Court 18

24 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing has been furnished by U.S. Mail to Norman R. Wolfinger, State Attorney and Philip Archer, Assistant State Attorney, 400 South Street, Titusville, Florida 32780; Rory C. Ryan, Esquire and Andrew P. Lannon, Esquire, Holland & Knight, LLP, 200 S. Orange Avenue, Suite 2600, Orlando, Florida 32801; Steven L. Brannock, Esquire, Holland & Knight, LLP, 100 N. Tampa Street, Suite 4100, Tampa, Florida 33602; Scott Knox, Esquire, Brevard County Attorney s Office, 2725 Judge Fran Jamieson Way, Building C, Viera, Florida 32940; and Henry Morgan, Jr., Esquire, Post Office Box 32092, Lakeland, Florida , this day of August, Attorney CERTIFICATE OF TYPE SIZE AND FONT COMPLIANCE I HEREBY CERTIFY that the type size and style used throughout this brief is 12-point Courier New double-spaced, and that this brief fully complies with the requirements of Florida Rule of Appellate Procedure 9.210(a)(2). Attorney 19