IN THE SUPREME COURT OF FLORIDA TALLAHASSEE, FLORIDA

IN THE SUPREME COURT OF FLORIDA TALLAHASSEE, FLORIDA ROB TURNER, as Hillsborough County Property Appraiser, Petitioner, vs. Case No. SC08-540 FLORIDA STATE FAIR AUTHORITY, Respondent. / RESPONDENT S ANSWER BRIEF ON JURISDICTION Raymond T. Elligett, Jr., Esq. Florida Bar No. 261939 Buell & Elligett, P.A. 3003 W. Azeele Street Suite 100 Tampa, Florida 33609 Tel: (813) 874-2600 Fax: (813) 874-1760 Gordon J. Schiff, Esq. Florida Bar No. 518890 Blair C. Kurland, Esq. Florida Bar No. 0138967 Schiff Law Group 1211 N. Westshore Blvd., Suite 401 Tampa, Florida 33607 Tel: (813) 286-9777 Fax: (813) 286-9773 ATTORNEYS FOR RESPONDENT

TABLE OF CONTENTS TABLE OF AUTHORITIES... ii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 2 ARGUMENT... 3 I. The Second District s decision that a portion of the Florida State Fairgrounds, which is subject to an agreement with Roadmaster Drivers School, is not subject to ad valorem taxation does not expressly and directly conflict with any case the Property Appraiser has cited... 3 A. Standard of Review... 3 B. Argument... 3 CERTIFICATE OF SERVICE... 9 CERTIFICATE OF COMPLIANCE... 9 i

TABLE OF AUTHORITIES CASES Barnett v. Florida Department of Management Services, 953 So. 2d 461 (Fla. 2007)... 4, 6, 7 Cason v. Florida Department of Management Services, 944 So. 2d 306 (Fla. 2006)...6, 7 City of Gainesville v. Crapo, 953 So. 2d 557 (Fla. 1st DCA 2007)... 4 Department of Revenue v. Johnston, 442 So. 2d 950 (Fla. 1983)... 3 Dickinson v. City of Tallahassee, 325 So. 2d 1 (Fla. 1975)... 5 Greater Orlando Aviation Authority v. Crotty, 775 So. 2d 978 (Fla. 5th DCA 2000)... 4 Markham v. Broward County, 825 So. 2d 472 (Fla. 4th DCA 2002)... 5 Park-N-Shop v. Sparkman, 99 So. 2d 571 (Fla. 1958)... 5 Reaves v. State, 485 So. 2d 829 (Fla. 1986)... 1 State v. Alford, 107 So. 2d 27 (Fla. 1958)... 5 Times Publishing Co. v. Russell, 615 So. 2d 158 (Fla. 1993)... 3 ii

OTHER AUTHORITIES 194.171, Florida Statutes... 6 616.260, Florida Statutes... 5 616.262, Florida Statutes... 7 Art. V, 3(b)(3), Fla. Const.... 2 Art. VII, 3(a), Fla. Const.... 5 Chapter 957, Florida Statutes...6, 7 iii

STATEMENT OF THE CASE AND FACTS The Property Appraiser s amended brief on jurisdiction includes items that are not appropriate in a jurisdictional brief and omits significant aspects of the basis for the Second District s opinion. 1 The trial court concluded the Florida State Fair Authority, as an instrumentality of the State, is immune from ad valorem taxation and entered judgment in its favor (op. 2). The Second District affirmed on an alternate ground and stated: (a) For purposes of implementing the legislation that established it, the Authority is considered to be an instrumentality of the state, subject to the jurisdiction of the state. The Authority is charged with the responsibility of staging an annual fair to serve the entire state. (citations omitted) (op. 2). (b) The fees paid by Roadmaster for this privilege generate revenues that the Authority uses to perform the functions assigned to it by the legislature. (op. 3). (c) For the 2004 and 2005 tax years, the Appraiser cut out the subject parcel from a larger tract within the Fairgrounds and sought to impose ad valorem taxes against it. (op. 3). 1 Page 1 of the amended brief contains several record citations, which are not permitted in a jurisdictional brief. E.g., Reaves v. State, 485 So. 2d 829 (Fla. 1986). 1

The Second District cited an Attorney General s opinion stating that the Florida State Fair Authority is a part of the legislative branch of government. (op. 4, n.1). SUMMARY OF THE ARGUMENT This case does not fall within the narrow class of cases invoking this Court s jurisdiction. A decisional conflict under Art. V, 3(b)(3), Fla. Const. requires that the decisions involve the same controlling facts and legal issues. There is no conflict between the Second District opinion and the decisions cited by the Property Appraiser. The decisions cited by the Property Appraiser are factually distinguishable and do not contain the same legal issues. The Property Appraiser s cases and argument concern the taxability of municipalities and local agencies. The facts and legal issues in this case concern an entity that is part of the state, and not a local municipality or authority. The Second District expressly found there is no case law that directly addresses the Florida State Fair Authority s place in the framework of state government (op. 4). Accordingly, the Property Appraiser has failed to demonstrate an express and direct conflict, as required for jurisdiction under Art. V, 3(b)(3). 2

ARGUMENT I. The Second District s decision that a portion of the Florida State Fairgrounds, which is subject to an agreement with Roadmaster Drivers School, is not subject to ad valorem taxation does not expressly and directly conflict with any case the Property Appraiser has cited. A. Standard of Review. This Court determines as a matter of law if the Property Appraiser has demonstrated an express and direct conflict, and if so, then exercises its discretion to determine whether or not it will accept the case. The decision to be reviewed and the conflicting decision must address the same question of law. Times Publishing Co. v. Russell, 615 So. 2d 158 (Fla. 1993). There is no jurisdiction if the facts of the cases are distinguishable from those in the case alleged to be in conflict. Department of Revenue v. Johnston, 442 So. 2d 950 (Fla. 1983). B. Argument. The Property Appraiser has not shown an express and direct conflict with any decision. The Property Appraiser has cited no case addressing the taxability of property owned by the Florida State Fair Authority that conflicts with the Second District opinion. Moreover, as discussed below, the circumstances of this case are 3

fact specific, which is a reason this Court has exercised its discretion to decline review when a tax case was certified on a question of great public importance. See Barnett v. Florida Department of Management Services, 953 So. 2d 461 (Fla. 2007). The Property Appraiser asserts conflict based on an argument that the Florida State Fair Authority is the same as a local municipality or local agency with regard to ad valorem taxation. He cites two cases in support of his argument: City of Gainesville v. Crapo, 953 So. 2d 557 (Fla. 1st DCA 2007); Greater Orlando Aviation Authority v. Crotty, 775 So. 2d 978 (Fla. 5th DCA 2000). These cases concern the taxability of municipal property and the taxability of the property of a municipal agency. Neither of these cases concern the taxability of property of the state government. As the Second District opinion notes, this case involves the Florida State Fair Authority s place in the framework of state government, and there is no case law that directly addresses this issue (op. 4.). The opinion observed the Attorney General has indicated that the State Fair Authority is part of the legislative branch of [state] government. (op. 4, n.1). Therefore, there is no conflict. The gist of the Property Appraiser s argument is found in the first sentence of his summary of the argument, and simply misreads the Second District opinion, 4

which did not make the holding he posits (brief p. 2). The Second District did not categorize the Florida State Fair Authority as the same as a municipality or local agency for ad valorem taxation. Therefore, the Property s Appraiser s argument based upon cases concerning taxability of municipal or local agency property is misplaced. In contrast to taxing local municipal property, the Property Appraiser has cited nothing entitling it to tax part of the state for local purposes. The Property Appraiser asserts that this may be the only appellate decision regarding taxability of government property that completely avoids any reference to Article VII, Section 3(a) of the Florida Constitution or to either the governmental-governmental test or the municipal or public purpose test (brief p. 7). To the contrary, there are numerous cases where those tests are not applicable, such as when property of the State, an agency of the state, or a political subdivision of the state (county) is involved. See Dickinson v. City of Tallahassee, 325 So. 2d 1 (Fla. 1975); State v. Alford, 107 So. 2d 27 (Fla. 1958); Park-N-Shop v. Sparkman, 99 So. 2d 571 (Fla. 1958); Markham v. Broward County, 825 So. 2d 472 (Fla. 4th DCA 2002). The Property Appraiser s selective citing of statutes ignores the real holding of the Second District s opinion (brief p. 3). The Second District held that, 5

because the parcel involved here was subject to a license, it was not taxable under 616.260. No case conflicts with this decision. Beyond the Property Appraiser s failure to demonstrate an express and direct conflict with the Second District s decision as to the Florida State Fair Authority, the Authority respectfully submits this Court should decline to exercise its jurisdiction because of the fact-specific circumstances of this case. This Court recently addressed cases involving the ownership of prison facilities by private entities that are leased to the Correctional Privatization Commission pursuant to Chapter 957, Florida Statutes. Cason v. Florida Department of Management Services, 944 So. 2d 306 (Fla. 2006), held the 60-day time limit under 194.171, Florida Statutes, for a lawsuit challenging an ad valorem assessment cannot be used to preclude challenging a tax assessment as void on the grounds that the property assessed is immune from ad valorem taxation. This Court stated its holding in Cason did not address whether the property at issue was immune from ad valorem taxation, and observed that issue had been certified to it as a question of great public importance in Barnett. 944 So. 2d at 316, n. 10. After initially accepting jurisdiction in Barnett to review that certified tax immunity issue, this Court concluded unanimously that we should exercise our 6

discretion and decline review because the circumstances of this case are factspecific. Barnett, supra, 953 So. 2d at 461. The Florida State Fair Authority respectfully submits that its case is even more fact specific. The Cason and Barnett cases show there is more than one such prison facility. The Florida State Fair Authority has only the one property, the Florida State Fairgrounds, on which it stages the annual state fair. As discussed above, there is no other decision that addresses this issue. 2 2 Another similarity between the Chapter 957 cases and the Florida State Fair Authority is the ultimate ownership of the property. As the DCA opinion in Barnett describes, the property is titled in the name of a private entity and, reverts to the Correctional Privatization Commission at the end of the lease, with no further payment. 931 So. 2d at 123. The Florida State Fair Authority cannot transfer any of the Florida State Fairgrounds without the prior approval of the Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund, which has a right of first refusal of any proposed transfer and, at its option, the Board may reject any proposed transfer and acquire the property for no consideration. 616.262, Florida Statutes. 7

CONCLUSION The Property Appraiser has not demonstrated an express and direct conflict. No other decision addresses the issue in this fact-specific case. Respectfully submitted, Gordon J. Schiff, Esq. Raymond T. Elligett, Jr., Esq. Florida Bar No. 518890 Florida Bar No. 261939 Blair C. Kurland, Esq. Buell & Elligett, P.A. Florida Bar No. 0138967 3003 W. Azeele Street Schiff Law Group Suite 100 1211 N. Westshore Blvd., Suite 401 Tampa, Florida 33609 Tel: (813) 286-9777 Tel: (813) 874-2600 Tampa, Florida 33607 Fax: (813) 874-1760 Fax: (813) 286-9773 ATTORNEYS FOR RESPONDENT 8

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished by U.S. Mail to: WILLIAM D. SHEPHERD, ESQ., General Counsel, Hillsborough County Property Appraiser s Office, 601 E. Kennedy Boulevard, 15th Floor, Tampa, Florida 33602, Attorneys for Petitioner; BRIAN T. FITZGERALD, ESQ., 601 E. Kennedy Boulevard, 27th Floor, Tampa, Florida 33602, Attorneys for Doug Belden; and MARK T. ALIFF, ESQ., Office of the Attorney General, Department of Legal Affairs, The Capitol, Tallahassee, Florida 32399-1050, Attorneys for James Zingale, Florida Department of Revenue, on April 15, 2008. Attorney CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this brief has been prepared using 14-point Times New Roman type, a font that is proportionately spaced. Attorney 9