IN THE SUPREME COURT OF FLORIDA CASE NO. L.T. CASE NO. 4D

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1 IN THE SUPREME COURT OF FLORIDA CASE NO. L.T. CASE NO. 4D ELLER DRIVE LIMITED PARTNERSHIP, a : Florida Limited Partnership : : Respondent, : : v. : : BROWARD COUNTY, a Political : Subdivision of the : State of Florida, : : Petitioner. : : PETITIONER S JURISDICTIONAL BRIEF Review from the District Court of Appeal, Fourth District State of Florida CLIFFORD M. STEIN Florida Bar Number Attorney at Law 5345 Pine Tree Drive Miami Beach, Florida Telephone:(305) Facsimile:(386)

2 Attorney for Petitioner TABLE OF CONTENTS Table of Citations... ii Statement of the Case and of the Facts... 1 Summary of the Argument... 2 Jurisdictional Statement... 3 Argument... 3 Conclusion... 9 Certificate of Service... 10

3 TABLE OF CITATIONS Case Law Bell V. Byan, 505 So.2d 690 (Fla. 1 st DCA 1987), rev.den. 513 So.2d 1960 (Fla. 1987)... 2 Canaveral Port Authority v. Dept. of Revenue 690 So.2d 1226 (Fla. 1997)... 3 Department of Revenue v. Morganwoods Greentree, Inc., 341 So.2d 756, 758 (Fla. 1976)... 3,7,8 Hillsborough County Aviation Authority v. Walden, Fla. 210 So.2d ,5 Homer v. Dadeland Shopping Center, Inc., 220 So.2d 834, 837 (Fla. 1969)... 3,4,6,7 Marathon Air Services, Inc. v. Higgs, 575 So.2d 1340 (Fla. 3 rd DCA 1991)... 2,5 Markham v. Broward County, 4D , 825 So.2d 472 (Fla. 4 th DCA 2002)... ii

4 1 McNayer v. Claughton, 198 So. 2d 366 (Fla. 3 rd DCA 1967)... 7 Parker v. the Hertz Corporation, 544 So.2d 249 (Fla. 2 nd DCA 1989)... 2 Park n Shop v. Sparkman, 99 So.2d 571 (Fla. 1957)... 2,4,5,6 Statutory and Constitutional Authority Article VIII, Section 1 Florida Constitution (12), Fla. Stat... 4, , Fla. Stat , Fla. Stat (1)(d), Fla. Stat... 5 Other Authority Fla. R. App. Proc (a)(2)(A)(iv) Laws of the State of Florida... 5 iii

5 STATEMENT OF THE CASE AND OF THE FACTS For purposes of this Brief, the facts of this case are as stated in the Opinion of the District Court of Appeal, Fourth District, contained in the Appendix hereto. On April 18, 2003, following the Markham v. Broward County Case No. 4D , 825 So.2d 472 (4th DCA 2002) decision where the Fourth District Court held that all county-owned property leased for nongovernmental purposes is immune from ad valorem taxation, Petitioner moved for supplemental relief to refund all of the ad valorem taxes it previously paid and to declare void previous assessments. In August 2004, the Trial Court, following its review of the lease between Eller Drive and Broward County, along with its review of various cases pertaining to exemptions from ad valorem taxes of county-owned property leased for nongovernmental purposes, concluded that the building constructed on countyowned land was owned by Broward County and therefore, not subject to ad valorem taxation. Broward County appealed that Order, which Order was reversed by the Fourth District Court of Appeal. The Fourth District Court mirrored the exercise of the Trial Court by reviewing the lease in an effort to interpret the 1

6 Petitioner s, ELLER DRIVE, predecessor-in-interest and Broward County s intent as to who technically owns the building constructed on county-owned land. The Fourth District Court was guided by such exemption cases as Marathon Air Services, Inc. v. Higgs, 575 So.2d 1340 (Fla. 3 rd DCA 1991); Parker v. the Hertz Corporation, 544 So.2d 249 (Fla. 2nd DCA 1989); and Bell v. Bryan, 505 So.2d 690(Fla. 1 st DCA 1987), rev.den. 513 So.2d 1960 (Fla. 1987). The Fourth District Court held that according to its interpretation of the lease, Petitioner, ELLER Drive, is the owner of the building and in so holding, the Fourth District Court sanctioned the power of Broward County to separately tax the building as real property. This case is controlled by principles of immunity from taxation, as opposed to statutes on exemption from taxation. The decision of the Fourth District Court of Appeal expressly and directly conflicts with decisions of this Court that specifically pertained to immunity from taxation. The decision also conflicts with one case that prohibits the fragmenting of interests in real property for purposes of ad valorem taxation. SUMMARY OF ARGUMENT The decision of the Fourth District Court of Appeal circumvents the Florida Constitution by upholding the assessment of an ad valorem tax on leasehold improvements constructed on 2

7 county-owned land. This decision is specifically contrary to this Court s holdings in Park n Shop v. Sparkman, 99 So.2d 571 (Fla. 1957) and Hillsborough County Aviation Authority v. Walden, Fla. 210 So.2d 192, that county-owned real property, including improvements to real property, is immune from taxation. The Fourth District Court s decision also creates separate subclasses of real property, land versus buildings, as well as distinct and separate owners of such subclasses of real property thereby conflicting with this Court s decisions in Department of Revenue v. Morganwoods Greentree, Inc., 341 So.2d 756, 758 (Fla. 1976)and Homer v. Dadeland Shopping Center, Inc. 220 So.2d 834, 837 (Fla. 1969)on the same point of law. JURISDICTIONAL STATEMENT This Court has discretionary jurisdiction to review a decision of a district court of appeal that expressly and directly conflicts with a decision of the Supreme Court on the same issues of law. Fla. R. App. Proc (a)(2)(A)(iv). ARGUMENT I. THE DECISION OF THE DISTRICT COURT EXPRESSLY AND DIRECTLY CONFLICTS WITH THIS COURT S DECISIONS ON CASES PERTAINING TO IMMUNITY. The Florida Constitution provides that all property owned by the State shall be immune from ad valorem taxation. Art. 3

8 VIII, Section 1, Fla. Const. In Canaveral Port Authority v. Dept. of Revenue 690 So.2d 1226 (Fla. 1997) this court held that counties perform a function of the State and therefore, comprise the State for purposes of immunity from ad valorem taxation, Id at P. 1228, Park n Shop v. Sparkman, 99 So.2d 571 (Fla. 1957) 1. Under the holdings of these cases, both land and building, real property components, as defined in (12), Fla. Stat., are immune from taxation. Instead of following these controlling decisions, however, the Fourth District Court of Appeal incorrectly concluded that the office building was not statutorily exempt from taxation. A constitutional immunity cannot be limited by a statute dealing with exemptions 2 In Park n Shop, supra, a tenant in Hillsborough County leased vacant land from the County for a period of years. The provisions of the lease provided that no ad valorem taxes would 1 What comprises the State, in addition to counties, is limited to the public school system and certain agencies, departments or branches of the state government. Id at p The difference between an exemption and immunity is that an exemption from taxation presupposes the ability to tax, but for a particular use to which the property is put, whereas in an immunity case, the constitutional or statutory power to tax is absent. The District Court s decision, therefore, conflicts with both Park n Shop and Dadeland, two immunity cases decided by this Court. 4

9 be levied against the property, but any building constructed thereon would be taxed when substantially completed. Id at page 572. This Court found that not only is the county-owned property immune from taxation, but that the leasehold interest in such property is neither tangible nor intangible personal property, as such property classes were defined in 1958 and therefore, the lessee s interest cannot be separately taxed. 3 In Hillsborough County Aviation Authority v. Walden, supra, an airport hotel was constructed on county-owned property. This Court held that such property is immune from taxation. 4 By contrast, the Fourth District Court disregarded the essential element of this case that the building in question was constructed on, and part and parcel of, county-owned land, as distinguished from the cases it relied upon, most of which 3 This case was decided before the passage of Chapter , Laws of Florida, which were in turn codified, in part, in , Fla. Stat., pertaining to ad valorem intangible taxes imposed on the value of leasehold interests. Ad valorem intangible taxes are not at issue in this case. 4 As in Park n Shop v. Sparkman, supra, Hillsborough County Aviation was decided prior to Chapter , Laws of Florida. This law provided that a leasehold interest in properties owned by a county, but leased for nongovernmental purposes shall be taxed as intangible personal property. Chapter (1)(d), Fla. Stat. The assessment of this property as intangible personal property, in accordance with 199 Fla. Stat. is not at issue in this case, and the Petitioner s compliance with such statute is also not at issue in this case. 5

10 involved property constructed on municipality-owned land. 5 The Fourth District Court then based its decision entirely on determining the ownership of the building. This determination of ownership might have been a proper exercise had this been an exemption case involving county-owned land. Since this case does not involve municipality-owned real property, the Fourth District Court s decision directly contradicts this Court s decisions on the same facts, but where the properties in question were immune from taxation. The Fourth District Court s decision, therefore, conflicts with both Park n Shop and Dadeland, both immunity cases decided by this Court. As a matter of public policy, the power to tax emanates from the Constitution. The State or a county lacks the authority to impose a tax or even to selectively relieve a property owner from a tax, unless specifically provided for under the Constitution and by the legislature. The Fourth District Court s decision violates the Florida Constitution by conferring a county with the right to impose a tax - or to relieve a property owner from a tax - by contract, merely by 5 In Marathon Air Services, Inc. v. Higgs, 575 So.2d 1340 (Fla. 3 rd DCA 1991), the property in question was owned by Monroe County. However, the Third District Court incorrectly decided this case under Chapter 196, Fla. Stat., which statutes only address exemptions. The case was not decided on the basis of 6

11 including a provision in a lease agreement declaring ownership of improvements comprising real property. In other words, if a county wanted to impose a tax on a lessee, it could contract with the lessee that the lessee shall own the building during the term of the lease. Alternatively, if a county wanted to relieve a lessee from the obligation of paying the tax, it could contract with the lessee that the county owns the building during the term of the lease. This latitude conferred on a county by the Fourth District Court that the county can impose a tax or not impose a tax, at its discretion, is not permitted under the Florida Constitution. II. THE DECISION OF THE DISTRICT COURT CONFLICTS WITH THIS COURT S DECISION SPECIFICALLY STATING THAT THERE IS ONLY ONE TAXPAYER/OWNER FOR EACH PROPERTY CLASS. In Department of Revenue v. Morganwoods Greentree, Inc., 341 So.2d 756, 758 (Fla. 1976), the taxpayer owned the common area of a housing project that was encumbered by easements and other rights afforded to the owners of the residential lots and townhouses. This Court held that the easements owned by and benefitting the owners of the residential lots and townhouses were not a separate interest in real property. In so holding, the property s immune status. 7

12 this Court stated, [i]n the levy of property tax the assessed value of the land must represent all of the interests in the land. Homer v. Dadeland Shopping Center, 229 So.2d 834 (Fla. 1970); McNayer v. Claughton, 198 So. 2d 366 (Fla. 3 rd DCA 1967). This means that despite mortgage, lease, or sublease of the property, the landowner will still be taxed as though he possessed the property in fee simple. The general property tax ignores fragmenting of ownership and seeks payment from only one owner. Id, at 758. (See also Homer v. Dadeland Shopping Center, Inc. 220 So.2d 834, 837 (Fla. 1969), in which this Court held that tax assessment valuation must include all interests in property except when the legislature authorizes assessment of separate interests. 6 ) In direct conflict with these holdings, the Fourth District Court s decision fragments the real property into two distinct subclasses, land and building, with two different and divergent owners/taxpayers. Since the building constructed on countyowned land cannot be physically separated from the land, the immunity from ad valorem taxation applies to the building, as well as the land. Accordingly, the Fourth District Court of Appeal s decision directly and expressly contradicts this 6 The Legislature has, in fact, sanctioned the creation of subclasses of real property , Fla. Stat. provides that subsurface mineral rights are a separate and distinct interest in real property that may be separately assessed and taxed. Other than this section of the Florida Statutes, there is no provision under Florida law that permits partial or fractional tax assessments to multiple interest holders in real property. 8

13 Court s holding in Department of Revenue v. Morganwoods Greentree, Inc. that for taxation of real property, as defined in Section (12), Fla. Stat., there can only be one owner and one taxpayer. CONCLUSION This Court has discretionary jurisdiction to review the decision below, and the Court should exercise that jurisdiction to consider the case on the merits. CLIFFORD M. STEIN Florida Bar Number Attorney at Law 5345 Pine Tree Drive Miami Beach, Florida Telephone:(305) Facsimile:(305) Attorney for Petitioner 9

14 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing Jurisdictional Brief and Appendix was served by mail this day of, 2006, on Andrew Meyer, James D. Rowlee, and Paul Figg, Assistant County Attorneys, Broward County, 115 South Andrews Avenue, Suite 423, Ft. Lauderdale, Florida 33301, Gregory Durden, 633 SW 3 rd Avenue, Suite 4F, Ft. Lauderdale Florida 33301, Attorney for Lori Parrish, as Broward County Property Appraiser, and John Max Milledge, 110 SE 6 th Street, 15 th Floor, Ft. Lauderdale, Florida , Attorney for Lori Parrish, as Broward County Property Appraiser. CLIFFORD M. STEIN Florida Bar Number Attorney at Law 5345 Pine Tree Drive Miami Beach, Florida Telephone:(305) Facsimile:(305) Attorney for Petitioner 10