Answer Brief of Respondent, Ken Pruitt, St. Lucie County Property Appraiser

Filing # 49824289 E-Filed 12/08/2016 07:32:19 PM

SUPREME COURT OF FLORIDA

CASE NO: SC16-1107

Lower Tribunal Case Nos. TREASURE COAST MARINA, LC, 4D14-3064 et al., 56-2011-CA-2968 Petitioners,

vs.

THE CITY OF FORT PIERCE, FLORIDA, etc., et al.,

Respondents. ______/

______

ANSWER BRIEF OF RESPONDENT, KEN PRUITT, ST. LUCIE COUNTY PROPERTY APPRAISER

On Discretionary Review from a Final Decision of the Fourth District Court of Appeal ______

Loren E. Levy Fla. Bar No. 0814441 Jon F. Morris Fla. Bar No. 113037 The Levy Law Firm 1828 Riggins Lane RECEIVED, 12/08/201607:33:29 PM,Clerk,Supreme Court Tallahassee, Florida 32308 Telephone: 850/219-0220 E-mail: [email protected] [email protected]

Counsel for Respondent, Ken Pruitt St. Lucie County Property Appraiser TABLEOFCONTENTS

Page Table ofAuthorities ...... ii Preliminary Statement ...... vi Statement ofthe Case and ofthe Facts ...... 1

Summary of Argument ...... 11 Standard ofReview ...... 14 Argument ...... 14

I. THE CITY MARINA AND THE FISHERMAN'S WHARF MARINA WERE USED FOR MUNICIPAL PURPOSES AND ARE EXEMPT FROM AD VALOREMTAXATION.

II. RIVERFRONT LACKS STANDING TO CONTEST THE EXEMPT STATUS OF THE CITY MARINA AND FISHERMAN'S WHARF MARINA. 38

Conclusion ...... 38 Certificate of Service ...... 39 Certificate of Compliance ...... 40

11 TABLE OF AUTHORITIES

Page Cases:

CAPFA Capital Corp. 2000A v. Donegan, 929 So.2d 569 (Fla. 5th DCA 2006) ...... 21,22,23

City of Ft. Pierce v. Treasure Coast Marina, LC, 195 So.3d 1141 (Fla. 4th DCA 2016) ………………………… passim

City of Gainesville v. Crapo, No. 01-03-CA-4664, (8th Jud. Cir. Ct. (Nov. 25, 2008)) ...... 19

City of Gainesville v. Crapo, 953 So.2d 557 (Fla. 1st DCA 2007) ...... 20

City of Miami Bch. v. Hogan, 63 So.2d 493 (Fla. 1953) ...... 18

City of Sarasota v. Mikos, 374 So.2d 458 (Fla. 1979) ...... 16

Daytona Bch. Racing & Rec. Facilities Dist. v. Paul, 179 So.2d 349 (Fla. 1965) ...... 17

Dep’t of Admin. v. Horne, 269 So.2d 659 (Fla. 1972) ...... 35

Dep't of Revenue v. City of Gainesville, 859 So.2d 595 (Fla. 1st DCA 2003) …………………………….. 15

Dep't of Revenue v. City of Gainesville, 918 So.2d 250 (Fla. 2005) ...... passim

Dep’t of Revenue v. Markham, 396 So.2d 1120 (Fla. 1981) ...... 34

Garcia v. Andonie, 101 So.3d 339 (Fla. 2012) ...... 14

iii Greater Orlando Aviation Auth. v. Crotty, 775 So.2d 978 (Fla. 5th DCA 2001) ...... 25,30

Green v. City of Pensacola, 126 So.2d 566 (Fla. 1961) ……………………………………….. 34

Islamorada, Village of Islands v. Higgs, 882 So.2d 1009 (Fla. 3d DCA 2004) ...... passim

Jones v. Dep’t of Revenue, 523 So.2d 1211 (Fla. 1st DCA 1988) ...... 35

Maronda Homes, Inc. v. Lakeview Reserve Homeowners' Ass'n, Inc., 127 So.3d 1258 (Fla. 2013) ...... 14

Page v. City of Fernandina Bch, 714 So.2d 1070 (Fla. 1st DCA 1998) ...... 25,29

Paul v. Blake, 376 So.2d 256 (Fla. 3rd DCA 1979) ...... 35

Rickman v. Whitehurst, 74 So. 205 (1917) ...... 34

Saunders v. City of Jacksonville, 25 So.2d 648 (Fla. 1946) ...... 13,32

Sebring Airport Auth. v. McIntyre, 783 So.2d 238 (Fla. 2001) ...... 17

Volusia County v. Daytona Bch. Racing & Rec. Facilities Dist., 341 So.2d 498 (Fla. 1976) ...... 17

Williams v. Jones, 326 So.2d 425 (Fla. 1975) ...... 17

Zingale v. Crossings at Fleming Island Cmty. Dev. Dist., 960 So.2d 20 (Fla. 1st DCA 2007) ………………………………. 23,24,25

iv Zingale v. Powell, 885 So.2d 277 (Fla. 2004) ...... 14

Florida Constitution:

Art. VII, § 3(a), Fla. Const...... passim

Art. VII, § 3(c), Fla. Const. ……………………………………………… 32

Art. VII, § 4(j), Fla. Const. ……………………………………………… 30

Art. VII, § 10(c), Fla. Const. ……………………………………………. 36-37

Art. VIII, § 2(b), Fla. Const. …………………………………………….. 32

Laws of Florida:

Ch. 97-197, § 2, Laws of Fla. (1997) ...... 15

Ch. 311, Fla. Stat. (2016) ………………………………………………. 30

Ch. 315, Fla. Stat. (2016) ……………………………………………… 30

Florida Statutes:

§ 166.047, Fla. Stat. (1997) ...... 15

§ 189.055, Fla. Stat. (2016) …………………………………………….. 23

§ 342.07, Fla. Stat. (2014) ...... 30

v PRELIMINARY STATEMENT

Petitioners, Riverfront Development, LC, and Treasure Coast Marina will be referred to collectively herein as "Riverfront." Respondent, City of Fort

Pierce, Florida, will be referred to herein as the "City." Respondent, Fort Pierce

Redevelopment Agency, will be referred to herein as the "FPRA." Respondent,

Ken Pruitt, St. Lucie County Property Appraiser, will be referred to herein as the

"property appraiser." References to the record on appeal will be delineated as (R- volume #-page#). References to the Petitioners' Initial Brief will be delineated as

(IB-page #)

vi STATEMENT OF THE CASE AND OF THE FACTS

This ad valorem tax case involves the taxable status of two marinas owned and operated by a municipality. The Fourth District Court held that marinas are generally considered a traditional municipal function and, therefore, the two marinas were being used for a municipal or public purpose as defined by

Dep't of Revenue v. City of Gainesville, 918 So.2d 250 (Fla. 2005). City of Ft.

Pierce v. Treasure Coast Marina, LC, 195 So.3d 1141 (Fla. 4th DCA 2016).

Accordingly, the district court concluded that the marinas were exempt from ad valorem taxation.

The district court certified the following question as one of great public importance:

IN LIGHT OF FLORIDA DEPARTMENT OF REVENUE V. CITY OF GAINESVILLE, 918 SO.2D 250 (FLA. 2005), DOES A MUNICIIPALLY OWNED AND OPERATED MARINA STILL QUALIFY AS A TRADITIONALLY EXEMPT 'MUNICIPAL OR PUBLIC PURPOSE' UNDER ARTICLE VII, SECTION 3(a) OF THE FLORIDA CONSTITUTION?

Id. at 1147. This Court respectfully is requested to answer the certified question in the affirmative.

In October 2011, the plaintiffs, Riverfront Development, LC and

Treasure Coast Marina (collectively "Riverfront"), who are the owners and operators of the Harbortown Marina located in St. Lucie County, Florida, filed suit

1 against the property appraiser, the Department of Revenue (department), the City of Ft. Pierce (City), and the Ft. Pierce Redevelopment Agency (FPRA). (R-1-1)

Riverfront sought to “declare unconstitutional the application of Article VII,

Section 3(a) of the Florida Constitution with respect to marinas which are owned and operated by Defendants Fort Pierce and the FP Redevelopment Agency in Ft.

Pierce, Florida;” and “permanently enjoin Defendant Pruitt from granting

Defendants Fort Pierce and FP Redevelopment Agency an ad valorem tax exemption in violation of Article VII, Section 3(a) of the Florida Constitution.”

(R-1-61)

The complaint alleged that Riverfront operated the Harbortown

Marina at a competitive disadvantage because it was located in close proximity to the two municipally-owned marinas and must charge higher fees for boat slips and diesel fuel resulting from the disparity in ad valorem tax treatment. (R-1-63-64)

Riverfront alleged that the municipally-owned marinas were commercial enterprises that were indistinguishable from a private enterprise and, as a result, were not used exclusively for a municipal or public purpose and were not essential to the health, morals, safety, and general welfare of the residents of Ft. Pierce. (R-

1-69)

The “City Marina” has been owned and operated by the City of Ft.

Pierce for decades and was established in 1938. (R-5-798) The “Fisherman’s

2 Wharf” Marina was acquired by the FPRA in 2007. At that time, the plan was to make certain repairs to the Fisherman’s Wharf Marina and operate it as overflow and seasonal dockage for the existing City Marina. (R-4-623) During 2011-2013, the Fisherman’s Wharf Marina, because of the economic circumstances, was just another option for someone to dock his or her vessel. (R-4-594) 1

Dean Kubitschek is an employee of the City of Ft. Pierce and is the manager of the City Marina and oversees operations of both the City Marina and the Fisherman’s Wharf Marina. (R-4-541) Kubitschek has been the manager of the City Marina since 1996. (R-4-549) In his deposition, he described the facilities and operations of both marinas.

During the years 2011-2013, the City Marina facilities included 137 boat slips, with the capacity to handle 143 boats. (R-4-563, 610) All of the boat slips are located on submerged land leases from the State of Florida. (R-4-610)

There are eight docks of which three are locked and only accessible by marina guests, contractors, and staff. (R-4-555-56) The City Marina has shower, bathroom and laundry facilities available for its guests. (R-4-556, 557-58) The

City Marina sells gas and diesel fuel. (R-4-576)

The City Marina includes the Harbormaster Building. (R-4-543) The

City uses a portion of the building for marina offices and has a retail store on the

1 The case was resolved on cross motions for summary judgment with all parties agreeing that there were no disputed issues of material fact. (R-8-8, 9, 57, 59)

3 first floor. (R-4-544) The retail store sells novelty goods, such as t-shirts, and boat accessories. (R-4-609) In addition, the retail store is where guests contact staff and arrange for dockage facilities. The same staff handles both the retail sales and the dockage registration. (R-4-609-10) Certain areas within the Harbormaster

Building were leased to private tenants during 2011-2013. (R-4-544, 605-07)

Those private tenants included East West Yachts, Dolphin Real Estate, and the entity operating the Tiki Bar restaurant. (R-4-544) During the same time frame, there was no vacant or unused space in the building. (R-4-609)

The Tiki Bar restaurant was leased to a private operator during 2011-

2013 under a lease that has been in existence since 1998. (R-4-608) The Tiki Bar restaurant occupies approximately 2000 square feet. (Id.)

The Fisherman’s Wharf Marina has 41 boat slips. All of the boat slips are located on submerged land leases from the State of Florida. (R-4-612) There is one dock at the marina and it has a locked gate. Marina guests are provided a key to the gate. (R-4-601) Bathrooms and showers are available to guests and keys are provided. (Id.) There are no fueling facilities. (R-4-599)

The Fisherman’s Wharf Marina also has an office building. During

2011-2013, portions of the building were leased to private for-profit and not-for- profit tenants and government tenants. (R-4-603) Those tenants included the

Florida Wildlife Commission, the Ft. Pierce Police Department, Treasure Coast

4 Boating, which rents boats, the Cleanup Initiative, which was a non-profit, and a charter boat operation. (Id.)

Kubitschek explained that, prior to his arrival in 1996, it was his understanding that the City Marina had been operating at a deficit. (R-4-551) His objective was to operate the marina at a profit, i.e., revenues would exceed expenses. (Id.) Since he was hired, he always had been able to run the marina facility with a positive cash flow. (Id.) In that regard, he conducts surveys of other marinas between Melbourne and South Florida to maintain competitive dockage rates. (R-4-551-52) He also attempts to keep lease rates for the buildings in line with the market. (R-4-606) In his opinion, every marina has something different to offer. Some boat owners shop price; others shop the location, ambiance, or identity of what a facility has to offer. (R-4-562-63) He attempts to keep pricing

“somewhere in the middle ground of what everybody else is doing.” (R-4-563)

He runs the City Marina and Fisherman’s Wharf Marina like a business. (R-4-600)

Vince Rahal is the Director of Assessments for the St. Lucie County

Property Appraiser’s Office. (R-4-637) One of the areas under his supervision is the review of governmental exemptions. (R-4-638) Although the ultimate annual determination of the assessment of all properties within the county, and application of any potential exemption, is reposed in the property appraiser, Rahal was the

5 person within the office responsible for determining the taxable status of the City

Marina and Fisherman’s Wharf Marina for the 2011-2013 tax years. (R-4-650)

For the 2011 tax year, the City Marina was exempt from ad valorem taxation, with the exception of the facilities leased to the Tiki Bar restaurant. (R-4-

654) The Tiki Bar restaurant was leased to a private party and, therefore, was considered taxable because it was not being used for a municipal or public purpose. (R-4-655) For record-keeping purposes, the Tiki Bar restaurant was assigned a separate folio number and assessment. (Id.) Rahal testified that the

City Marina was as municipally-owned property used for municipal purposes because it was essential to the health, safety, and welfare of Ft. Pierce residents, as defined by Florida court decisions. (R-4-669)

The Fisherman’s Wharf Marina was totally exempt for the 2011 tax year. (R-4-647) As with the City Marina, the property appraiser’s office had determined that it was municipally-owned property used for municipal purposes because it was essential to the health, safety, and welfare of Ft. Pierce residents, as defined by Florida court decisions. (R-4-669)

During the 2012 tax year, the property appraiser’s office learned that certain portions of the Harbormaster building at the City Marina had been leased to private parties. (R-4-676) As a result, separate folio numbers were created for those parcels reflecting the portion of the Harbormaster building that was occupied

6 by these private tenants. (R-4-663) Approximately 30-35 percent of the building was determined to be taxable based on those leases to private tenants. (R-4-664)

Prior to 2012, the entire Harbormaster building was exempt. (Id.)

The property appraiser’s office made similar changes to the taxable status of the Fisherman’s Wharf Marina for the 2012 tax year. When the office became aware that portions of the office building located at the marina were leased to private individuals or corporate businesses, those portions were determined to be taxable. (R-4-653, 662) Separate folio numbers were created to reflect the portions of the office building that were occupied by private tenants. (R-4-653)

For the 2013 tax year, there were no changes to the taxable status of either the City Marina or the Fisherman’s Wharf Marina from that applied to those properties in 2012. The leased portions remained the same as in the prior year.

(R-4-606-09)

William Cooley testified on behalf of Riverfront. He explained that, when the Harbortown Marina was acquired in 2011, it “was rather run down.” (R-

4-704) He further stated that approximately $2 million had been spent in making repairs to the marina between 2011 and 2013. (Id.) By 2013, Harbortown was the

“best marina in the region” in his opinion, and the second or third largest in the state. (R-4-728, 736) Although Cooley complained that Harbortown Marina had lost eight customers to the Fisherman’s Wharf Marina in recent years, he also

7 stated that 15 customers had left the City Marina to return to Harbortown Marina because of the renovations. (R-4-721, 729)

Cooley conducted dockage rate surveys so that he could keep his rates competitive. At the time of his purchase in 2011, the rates at the City Marina were about the same as charged at the Harbortown Marina. (R-4-730) At the end of

2011, the rates continued to be the same (Id.) In the first quarter of 2012, the rates were the same. (Id. at 95-96, 110) In fact, since the purchase in 2011, the rates remained the same. (Id.)

During this time frame, the rates at the Fisherman’s Wharf Marina were slightly lower. (R-4-726, 730) Cooley acknowledged that the amenities there were less than offered at the Harbortown Marina. In addition, the water at the Fisherman’s Wharf was shallower, which impacted the size of boats that could dock at the facility. (R-4-711, 730)

Cooley explained that he would be able to charge higher fees – and make more profit – if the City Marina and Fisherman’s Wharf Marina were taxable. As Cooley stated:

Well, if you take – take the assessed value of these two properties, the last numbers I looked at, of course they change from year to year, was about $5 million and you multiply that times the County mill rate which would be, I believe it was 2.6414 percent, you’d come up with paying $120,000 a year or so on taxes. So if you add $120,000 a year to your operating budget and if they’re only making $120,000 a year, you’re gonna have to raise

8 the price to get back in line with the other marinas in the area where – that would allow the other marinas to all raise their costs or their charges. So the fact that these guys are allowed to operate without paying property taxes is hurting and will permanently hurt every other marina in the area.

(R-4-742, emphasis added)

After discovery was completed, Riverfront moved for summary judgment and asserted that the City Marina and Fisherman's Wharf Marina should be taxable in their entirety. (R-2-217) The property appraiser likewise sought summary judgment but asserted that the marinas were exempt with the exception of the portions leased to private entities and used for proprietary purposes, which were taxable. (R-5-820) The City and FPRA also moved for summary judgment and argued that the marinas should be exempt, with the exception of the leased portions. (R-5-747)

After argument, the trial court granted Riverfront's summary judgment motion and denied the motions filed by the property appraiser and the City. (R-6-

990) In its order, the trial court concluded that a different, more narrow definition of municipal or public purpose was announced by this Court in City of Gainesville.

(R-6-997). Under that standard, the City Marina and Fisherman's Wharf Marina were not being used for municipal or public purposes because the private sector was capable of providing marina facilities to the local citizens. As the trial court order stated:

9 Applying the new, narrower definition of 'municipal or public purpose' – as set forth in Gainesville and articulated more fully in CAPFA – the Court finds that property at the City Marina and Fisherman's Wharf Marina is not used for such a purpose, and therefore the constitutional tax exemption in Art. VII, section 3(a) does not apply to that property. The uncontroverted facts presented by Plaintiffs demonstrate that the City Marina and Fisherman's Wharf Marina do not qualify as a 'municipal or public purpose' under the legal standard that CAPFA, Crapo, and ultimately Gainesville require this Court to apply. Plaintiffs' Harbortown Marina and the other private marinas in St. Lucie County show that the private sector can provide marina services to local citizens. It is also undisputed that in the past, the City Marina was operated by a private lessee, and Fisherman's Wharf Marina was owned by a private operator, confirming that private sector can meet local needs for marina services. See Pruitt Motion at 17 (acknowledging these facts are 'established' by the record). Therefore, municipal operation of the City Marina and Fisherman's Wharf Marina is not 'essential,' 'necessary' or 'indispensible' under the Gainesville standard. Instead, the Court agrees that the municipal marinas at issue here are commercial enterprises functionally equivalent to Plaintiffs' Harbortown Marina, and the record establishes that these marinas compete with one another. See e.g., Plaintiff's Motion at 15. Harbortown Marina pays property taxes, which are a significant expense, and it is unfair as well as unconstitutional under Gainesville for the municipal marinas not to also pay their fair share of property taxes.

(R-6-997-98, bold in original, emphasis added.)

The Fourth District Court reversed the trial court's order. City of Ft.

Pierce, 195 So.3d at 1147. The court rejected the argument that City of Gainesville

10 set forth a new, narrower definition of municipal or public purpose applicable to ad valorem taxation. As the district court stated:

We conclude that the City's marinas serve a 'municipal or public purpose' under Islamorada, Gainesville, and the cases predating Gainesville. The marinas are open to public use, are exclusively owned and operated by the City, and provide recreation for local residents and support the local economy by attracting non-local residents. In addition, City Marina is part of a larger recreational park complex. Thus, not only do the City's marinas serve a purpose that has been repeatedly and explicitly recognized as a 'municipal or public purpose,' see, e.g., Zingale, 960 So.2d at 25, they also operate specifically 'for the comfort, convenience, safety, and happiness of the municipality's citizens[,]' Islamorada, 882 So.2d 1011 (quoting Page, 714 So.2d at 1076), and serve the public purpose of developing recreational facilities in 'increas[ing] trade by attracting tourists and [providing] recreation for the citizens[,]' Daytona Beach Racing, 179 So.2d at 352.

Id. at 1146-47. After the district court certified a question of great public importance, Riverfront sought review by this Court.

SUMMARY OF ARGUMENT

I. THE CITY MARINA AND THE FISHERMAN’S WHARF MARINA WERE USED FOR MUNICIPAL PURPOSES AND ARE EXEMPT FROM AD VALOREM TAXATION.

11 aspect of the 1968 Constitution, as discussed in City of Gainesville, is related to city-owned properties used by private, for profit businesses. The Court plainly stated that the test for property owned and used by a municipality was unchanged from the 1885 and 1968 Constitutions and decisional law interpreting those provisions.

Likewise, Riverfront's argument that the City Marina and Fisherman's

Wharf Marina did not constitute a municipal or public purpose because they compete with private enterprise, which could provide the same facilities, is an incorrect interpretation of City of Gainesville. The mere existence of competition with private enterprise does not control whether the city-owned and operated property is subject to ad valorem taxation. If that were the case, the statute at issue in City of Gainesville would have been declared facially unconstitutional; a conclusion this Court declined to reach.

12 transportation systems, including bus terminals and light-rail facilities, compete with private transportation providers. Even a developer of a residential subdivision offering nature paths, bike trails, and walkways could complain that similar facilities should not be offered by municipalities so as to encourage individuals to purchase homes in the subdivision and, if so, the city should be required to pay taxes. In effect, cities would be highly restricted in the facilities made available to its residents and visitors without incurring taxation. Exemption of municipal property should be the rule, however, and taxation should be the exception thereto.

Saunders v. City of Jacksonville, 25 So.2d 648 (Fla. 1946).

II. RIVERFRONT LACKS STANDING TO CONTEST THE EXEMPT STATUS OF THE CITY MARINA AND FISHERMAN’S WHARF MARINA.

Riverfront lacks standing to contest the exempt status of the City

Marina and Fisherman’s Wharf Marina. Status as a business operator and property owner does not confer a concomitant ability to contest the property appraiser’s decision to exempt property, or portions thereof, owned by other entities from ad valorem taxation.

Riverfront also does not fall within the “constitutional challenge” exception to the requirement of special injury. It only attacks the property appraiser’s judgment in determining that the subject properties, or portions thereof, were exempt for the 2011-2013 tax years as being contrary to Article VII, Section

13 3(a) of the Florida Constitution. No claim was made that any statutory enactment is unconstitutional.

STANDARD OF REVIEW

The interpretation of the constitution is a pure legal issue that is reviewed de novo. Garcia v. Andonie, 101 So.3d 339, 343 (Fla. 2012); Zingale v.

Powell, 885 So.2d 277, 280 (Fla. 2004). A trial court's order granting summary judgment is reviewed de novo, with the appellate court viewing the facts in a light most favorable to the non-moving party. Maronda Homes, Inc. v. Lakeview

Reserve Homeowners' Ass'n, Inc., 127 So.3d 1258 (Fla. 2013).

ARGUMENT

I. THE CITY MARINA AND THE FISHERMAN’S WHARF MARINA WERE USED FOR MUNICIPAL PURPOSES AND ARE EXEMPT FROM AD VALOREM TAXATION.

Central to the Riverfront's argument is its conclusion that this Court in

City of Gainesville set forth a narrower definition of municipal or public purposes than applicable in cases preceding its decision. Relying on its conclusion that a narrower definition should be applied, Riverfront further argues that the City

Marina and Fisherman's Wharf Marina were not being used for a municipal or public purpose because these facilities competed with private enterprise, which could provide the same facilities. Riverfront contends that the municipal purpose exemption must be limited to a "non-commercial or governmental use, like a park

14 or a city hall." (IB-15) Both of these conclusions are incorrect interpretations of the decision in City of Gainesville.

In City of Gainesville, this Court reviewed a First District Court decision declaring facially unconstitutional section 166.047, Florida Statutes, which was enacted in 1997. See Ch. 97-197, § 2, Laws of Fla. (1997). Dep't of

Revenue v. City of Gainesville, 859 So.2d 595 (Fla. 1st DCA 2003). Section

166.047 required municipalities providing telecommunication services to the public, as authorized by legislation enacted in 1995, to pay ad valorem taxes or equivalent fees on facilities used to provide such services. The purpose and effect of this legislation was to make property owned and used by a municipality for a telecommunications business subject to ad valorem taxation. City of Gainesville,

918 So.2d at 256.

This Court held that the statute was facially constitutional, concluding that – although telecommunication services were essential services – the provision of telecommunication services does not always serve a municipal or public purpose. “Rather, we make the narrower determination that in providing such services, regardless of circumstances such as the availability of the same services through other providers, a municipality does not as a matter of law engage in an activity essential to the welfare of the community.” Id. at 253.

15 In reaching its decision, this Court undertook a lengthy discussion of the municipal exemption from ad valorem taxation under the 1885 and 1968

Constitution. This Court concluded that the municipal exemption under the 1968

Constitution differed from the exemption under the 1885 Constitution in two significant ways.

First, the 1968 Constitution “does not require legislative authorization to activate the self-executing exemption for property owned and used exclusively by the municipality for municipal or public purposes. In other words, no longer was the exemption contingent upon the Legislature declaring that an activity served a municipal purpose and was therefore tax exempt.” Id. at 259; see also

City of Sarasota v. Mikos, 374 So.2d 458, 460 (Fla. 1979) (“A reading of section

3(a) of article VII clearly establishes that it is a self-executing provision and therefore does not require statutory implementation.”); Art. VII, § 3(a), Fla. Const.

("All property owned by a municipality and used exclusively by it for municipal or public purposes shall be exempt from taxation.").

Second, “the self-executing exemption requires use of the property by the municipality that owns it, whereas article XVI, section 16 of the 1885

Constitution did not require ownership and use by the municipality as long as the property was ‘held and used exclusively’ for municipal purposes.” Id. at 259-260.

This Court viewed this change as a response to an early decision involving the

16 Daytona Beach Raceway, which allowed a municipal exemption even though the city-owned property was leased to a private, for-profit operator. See Daytona Bch.

Racing & Rec. Facilities Dist. v. Paul, 179 So.2d 349 (Fla. 1965). After passage of the 1968 Constitution, municipal property leased to private entities for profitmaking endeavors was taxable because it served a “governmental- proprietary” purpose instead of a “governmental-governmental” purpose. See

Sebring Airport Auth. v. McIntyre, 783 So.2d 238 (Fla. 2001); Williams v. Jones,

326 So.2d 425 (Fla. 1975). As a result, the Daytona Beach Raceway subsequently was determined to no longer be exempt from ad valorem taxation. Volusia County v. Daytona Bch. Racing & Rec. Facilities Dist., 341 So.2d 498 (Fla. 1976). The decision in Volusia County "marked one step in a series of cases in which this

Court developed a separate and more restrictive test under article VII, section 3(a) for private interests in municipal property." City of Gainesville, 918 So.2d at 260

(emphasis added).

Despite these two differences, this Court held that the term “municipal or public purposes,” in the context of property owned by a municipality and used exclusively by it, should have the same definition utilized under either the 1885 or

1968 Constitutions. “There is nothing in the language of article VII, section 3(a) that evinces an intent to create a more restrictive definition of ‘municipal or public purposes’ for property that is owned and used exclusively by the municipality than

17 the definition applied to ‘municipal purposes’ under the 1885 Constitution in

McDavid and Saunders through the 1968 adoption of the current provision.” Id. at

264.

Accordingly, this Court held that the municipal or public purposes for which municipally-owned property must be exclusively used to qualify for an ad valorem tax exemption “encompass activities that are essential to the health, morals, safety, and general welfare of the people within the municipality.” Id. “In putting this definition into practice, we focus on the word ‘essential,’ which is generally defined as something basic, necessary, or indispensable.” Id.

In explaining the application of this test, this Court discussed with approval its prior decisions determining that exemptions for public housing, electricity, vacant lands, and public parks, were appropriate. Id. at 265. In particular, this Court cited an earlier decision wherein it held that in “’[i]n all heavily populated municipalities the police power should be exercised by municipal officials to afford all of the people light, air, [and] an opportunity for recreation.’” Id. citing City of Miami Bch. v. Hogan, 63 So.2d 493, 495 (Fla.

1953).

In contrast to these earlier decisions, this Court observed that the private sector historically had provided telecommunications services and that the rationale for the 1995 legislation opening this area of service to competition by

18 municipalities was to provide customers with freedom of choice, encourage the introduction of new telecommunications service, and to encourage innovation and investment in infrastructure. This Court expressed its concern that municipalities may enter the telecommunication market regardless of whether their participation furthered any of those goals. “In other words, a municipality, using infrastructure advantages gained from its pre-existing utility operations, may enter a market in which a high level of service and competition already exists without introducing new levels of service, fostering innovation, or encouraging infrastructure investment. If that is the case, the municipal telecommunications company does not provide a service that is essential to the health, morals, safety, and general welfare of the people within the municipality.” Id. at 265.

Thus, this Court held that section 166.047 was facially constitutional and remanded the case to the trial court. Id. at 266. On remand, the trial court subsequently determined the city’s telecommunications facilities to be exempt because the city had entered the “market to encourage freedom of choice, innovation, and competition and to develop the market’s infrastructure.” City of

Gainesville v. Crapo, Case No. 01-03-CA-4664, p. 6-7 (8th Jud. Cir. Ct. (Nov. 25,

2008). In reaching its decision, the trial court specifically rejected the argument that the city was not using the fiber network exclusively for a public purpose because it was an open access network and available for use by private providers to

19 deliver services to their customers. In the trial court’s opinion, “providing an open access network enhances freedom of choice and competition and encourages the development of new services.” Id. at 7. The trial court’s decision was not appealed.2

Riverfront's argument that City of Gainesville set forth a narrower definition of municipal or public purpose – in the specific context of property owned and used by a municipality – is simply incorrect. The only more restrictive aspect of the 1968 Constitution, as discussed in City of Gainesville, is related to city-owned properties used by private, for profit businesses. The Court plainly stated that the test for property owned and used by a municipality was unchanged from the 1885 and 1968 Constitutions and decisional law interpreting those provisions.

Likewise, Riverfront's argument that the City Marina and Fisherman's

Wharf Marina did not constitute a municipal or public purpose because they compete with private enterprise, which could provide the same facilities, is an

2 There was a district court decision involving these parties subsequent to this Court’s decision. See City of Gainesville v. Crapo, 953 So.2d 557 (Fla. 1st DCA 2007). That case concluded that communication towers owned by the city but leased to private PCS providers were taxable. It also concluded that vacant land purchased as a buffer to the city’s electric plant was taxable because the private timber company that sold the land to the city retained the timber rights and leased the land to a private club for hunting rights. With regard to the telecommunications property, the district court remanded to the trial court for the factual findings required by this Court’s decision.

20 incorrect interpretation of City of Gainesville. The mere existence of competition with private enterprise does not control whether the city-owned and operated property is subject to ad valorem taxation. If that were the case, the statute at issue in City of Gainesville would have been declared facially unconstitutional; a conclusion this Court declined to reach. Besides, this Court specifically recognized electrical power and affordable housing as valid municipal purposes that are not subject to ad valorem taxation. 918 So.2d at 264-65. There is ample availability of such facilities in the private sector.

Under Riverfront's position, a city-owned and operated marina would be exempt from ad valorem taxation provided that it was the only marina facility in the county. If a private enterprise subsequently entered the market area and offered competing marina facilities, however, the exemption would cease. Such an interpretation is not supported by any fair reading of the City of Gainesville decision.

To support its conclusion that City of Gainesville set forth a narrower legal standard for determining tax exempt status of property owned and used by a municipality, Riverfront relies in large part upon CAPFA Capital Corp 2000A v.

Donegan, 929 So.2d 569 (Fla. 5th DCA 2006). That case involved the taxable status of an apartment complex located in Orange County, Florida, that was owned by the City of Moore Haven, which is situated in Glades County, Florida.

21 In reaching its decision, the Fifth District Court commented that City of Gainesville had "further narrowed the definition or concept of municipal property owned and used for municipal and public purposes, which is exempt from taxation under article 7, section 3(a)." 929 So.2d at 572. The district court, however, failed to explain with any specificity how the legal standard had been narrowed.

In fact, the district court later explained that City of Gainesville merely clarified any potential confusion that may have existed in prior decisions.

As the court stated:

Although there may have been some question under prior cases, City of Gainesville clarifies that to qualify for a tax exemption under Article 7, section 3(a), there must be a service to the community which is both necessary and essential to the health, safety and morals of the people. The Jefferson Commons project does not come close to meeting that standard. It is more similar to a telecommunications system established by a city in competition with other private providers. At best, it could be said that the project meets student housing needs in the university area, but without the project, other apartment projects could meet the same need and provide a similar market price.

Id. at 573-74 (emphasis added).

In actuality, the CAPFA decision should merely stand for the proposition that a municipality cannot build an apartment complex in another county and claim that it should be exempt from ad valorem taxation because it

22 generates revenue for its coffers. "Utilization of the property is the relevant test – not ultimate use of the revenues earned." Id. at 574.

Riverfront, however, largely ignores the other district court decision addressing whether City of Gainesville set forth a new, narrower definition of municipal purpose, which is Zingale v. Crossings at Fleming Island Cmty. Dev.

Dist., 960 So.2d 20 (Fla. 1st DCA 2007), quashed on other grounds, 991 So.2d 793

(Fla. 2008) (property appraiser’s standing to defensively challenge constitutionality of statute).

The issue in Zingale concerned the taxable status of a golf course, swim and tennis center, and four pedestrian playgrounds owned by a Community

Development District (CDD). For purposes of ad valorem taxation, property owned by a CDD is treated as if owned by a municipality. See § 189.055, Fla.

Stat. (2014) ("For the purpose of s. 196.199(1), special districts shall be treated as municipalities."). None of the properties were leased to private, for profit entities.

After a bench trial, the trial court concluded that the property was used for

"activities that are essential to the health, morals, safety and general welfare of the people within the District," and granted the exemption. Zingale, 960 So.2d at 23.

On appeal, the department argued that City of Gainesville "narrowed what should be considered as exempt municipal property. Under that more narrow definition, the Department argues that the trial court erred by treating the District's

23 golf course, swimming pools, tennis courts, and playgrounds as exempt property."

Id. at 24. The First District Court expressly disagreed with the department's argument and affirmed the trial court's ruling that the properties were exempt. Id. at 24-5.

After discussing City of Gainesville, the First District Court observed that the procedural posture of that case involved the facial constitutionality of a statute as opposed to the trial court's ruling on the specific facts presented in that case. The district court stated as follows in affirming the trial court's ruling:

The trial court held, on the evidence including the background facts described above, that the specified properties were used for a proper municipal purpose and therefore exempt. Significantly, the evidence shows that the property is open to the public and is not operated for profit, notwithstanding that it is operated by a management company. Because the property, for exemption purposes, should be treated the same as parks and recreation opportunities traditionally provided by municipalities, which are explicitly recognized as exempt property by the Court in Gainesville, we agree and affirm the trial court's ruling on that issue. See Sun 'N Lake of Sebring Improvement Dist. v. McIntyre, 800 So.2d 715, 723 (Fla. 2d DCA 2001) (recognizing that '[i]t is possible that a golf course or tennis courts, owned by a municipality and held open to the public, and not operated in conjunction with a for-profit business, may serve an exclusively public purpose;' citing Page v. City of Fernandina Beach, 714 So.2d 1070 (Fla. 1st DCA 1998) (holding that operation of marina by city serves public purpose entitling city to tax exemption), and Am. Golf of Detroit v. City of Huntington Woods, 225 Mich.App. 226, 570 N.W.2d 469 (1997) (likening certain golf courses to public parks)).

Id. at 26 (emphasis added).

Riverfront could parse the holding in Zingale and argue that the facts presented in that case were dissimilar to the instant case. Such an argument, however, would miss the import of the case. Zingale rejected the same argument advanced by Riverfront, i.e., that City of Gainesville narrowed the test for municipal exemption. Moreover, Zingale observed that a marina facility was a recreational opportunity traditionally offered by municipalities and entitled to tax exemption, citing Page v. City of Fernandina Bch., 714 So.2d 1070 (Fla. 1st DCA

1998).

Indeed, Riverfront cannot cite a single appellate court decision in

Florida concluding that a municipally owned and operated marina is subject to ad valorem taxation. Every other decision has concluded that such facilities are exempt from taxation. See Zingale, 960 So.2d at 26 (observing that golf course is recreational facility exempt from taxation like marina); Higgs, 882 So.2d at 1009

(marina is exempt despite that the village earns a profit from its operation);

Greater Orlando Aviation Auth. v. Crotty, 775 So.2d 978, 981 (Fla. 5th DCA

2001) (distinguishing airport hotel from marina, which is a valid municipal purpose); Page, 714 So.2d at 1076 (operation of marina is a legitimate municipal corporate undertaking for the comfort, convenience, safety, and happiness of the municipality's citizens).

25 In a case that is substantially similar to the instant case, the Third

District Court has concluded that the city-owned and operated marina was exempt from ad valorem taxation because it fulfilled a municipal or public purpose.

Islamorada, Village of Islands v. Higgs, 882 So.2d 1009 (Fla. 3d DCA 2004).

Although issued before City of Gainesville, Higgs applied the same legal standard for determining exempt status of city-owned and operated marinas as later delineated by this Court.

In Higgs, the city had exclusively owned and operated the Plantation

Yacht Harbor Marina since 2000. The marina was part of the Islamorada Founders

Park, which included various recreational facilities and administrative offices for the city and a fire rescue facility. For the tax year in question, the city operated the marina “for the purpose of serving the recreational needs of both its residents and the general public, including out-of-town visitors.” 882 So.2d at 1010. Services available at the marina included the use of a boat ramp, dockage, and refueling.

Revenues of the city’s operation of the marina exceeded the expenses associated with its operation.

The district court described the issue to be decided as “whether a marina that is owned and operated by a municipality is entitled to an ad valorem tax exemption when the marina serves both residents and nonresidents, despite (1) operating in competition with other marinas in the area and (2) generating a profit

26 for the municipality which is deposited into the municipality’s general fund.” Id.

The district court concluded that the marina was exempt because it agreed with the city’s argument that the marina “is a recreational facility that is available to residents and nonresidents and is operated without the involvement of a nongovernmental lessee or operator.” Id.

The district court stated as follows in concluding that the marina was being used for municipal or public purposes:

The resolution of the issue centers around whether the Marina is being used exclusively by the Village for municipal or public purposes. If the Marina is being used for municipal or public purposes, then it is exempt from ad valorem taxation. The term “municipal purpose” embraces all activities essential to the health, morals, protection and welfare of the municipality. See Crotty, 775 So.2d at 980 (citations omitted). ‘Municipal functions’ are functions created for or granted for the benefit and advantage of the community included within the corporate boundaries. See id. at 980-81 (citations omitted). Municipal functions are those which ‘specifically and peculiarly promote the comfort, convenience, safety and happiness of the citizens of the municipality rather than the welfare of the general public.’ Id. at 981. In Page v. City of Fernandina Beach, 714 So.2d 1070, 1076 (Fla. 1st DCA 1998), the First District stated,

Municipal operation of a marina is a legitimate municipal corporate undertaking for the comfort, convenience, safety, and happiness of the municipality's citizens.... When a city operates a marina it owns, marina property it has not leased to a nongovernmental entity is exempt from ad valorem taxation.

(emphasis added). We agree with the foregoing language from the First District.

In the instant case, it is abundantly clear that, despite the fact that the Village earns a profit from its operation of the Marina, the Marina exists and is operated for the comfort, convenience, safety, and happiness of the citizens of the Village.

Id. at 1011 (emphasis added, bold in original).

The decision in Higgs is squarely on point with the facts in the instant case. When a city operates a marina that it owns, such property is exempt from ad valorem taxation. Here, the property appraiser has exempted the marina properties owned and operated by the City and FPRA. Those portions of the marinas that have been leased to private entities, which are the Tiki Bar restaurant and portions of the Harbormaster and Fisherman’s Wharf office buildings, were determined to be taxable. In all other material respects, the marina at issue in Higgs is indistinguishable from the marinas in the instant case.

When the test for municipal purposes applied in Higgs is compared with the test announced in City of Gainesville, it is difficult to discern any material difference. In Higgs, the district court held that the term municipal purpose embraced “all activities essential to the health, morals, protection and welfare of the municipality.” Higgs, 882 So.2d at 1011. In City of Gainesville, this Court held that the term encompassed “activities that are essential to the health, morals,

28 safety, and general welfare of the people within the municipality.” City of

Gainesville, 918 So.2d at 264. Indeed, the only difference in terminology is the substitution of the word “protection” with “safety.”

The test for municipal purposes applied in each of those decisions is virtually identical. In applying this test, Higgs determined that a municipal purpose existed when a marina that is owned and operated by a municipality serves both residents and nonresidents, even though it operated in competition with other marinas in the area and generated a profit for the municipality. In the instant case, there is no material factual difference between the marina in Higgs and the operation of the City Marina and Fisherman’s Wharf Marina by the City of Ft.

Pierce and the FPRA.

The First District Court has reached the same conclusion as Higgs.

See Page v. City of Fernandina Bch, 714 So.2d 1070 (Fla. 1st DCA 1998). At issue in that case was the taxable status of a city-owned marina that was leased to a private, for-profit operator. The district court held that such property was taxable when leased to a private corporation utilizing the property for governmental- proprietary purposes. Id. at 1076. The district court, however, recognized that its decision would be different if the marina were not leased to a private operator. As the district court stated:

Municipal operation of a marina is a legitimate municipal corporate undertaking for the comfort,

29 convenience, safety, and happiness of the municipality's citizens. Indeed, the uncontradicted expert testimony was that operation of this marina constituted a proper municipal or public function. When a city operates a marina it owns, marina property it has not leased to a nongovernmental entity is exempt from ad valorem taxation. Evidence indicated that some of these marina facilities had previously been operated by the City, and that, by the time of trial in January of 1996, operational responsibilities had once again been assumed by the City. But operating a marina partakes of no aspect of sovereignty and does not warrant an exemption for a marina leased to a nongovernmental operator seeking profits.

Page, 714 So.2d at 1076-77 (emphasis added); accord Greater Orlando Aviation

Auth. v. Crotty, 775 So.2d 978, 981 (Fla. 5th DCA 2001) (Distinguishing the operation of a hotel from "a park or a marina constructed for the enjoyment of the citizenry as in Page."); c.f. § 342.07, Fla. Stat. (2014) (recognizing an important state interest in facilitating boating and recreational access to navigable waters);

Ch. 311, Fla. Stat. (2016) (funding of seaport programs and facilities); Ch. 315,

Fla. Stat. (2016) (port facilities financing); Art. VII, § 4(j), Fla. Const. (ad valorem assessment of working waterfront properties).

In the instant case, the undisputed factual record amply supports the conclusion that the City Marina and Fisherman's Wharf Marina are being used for a municipal or public purpose by providing essential services. In the broadest sense, those marinas have historically guaranteed public access to the waterfront.

While users of the marina facilities are charged a fee that is competitive with

30 private marinas, such does not convert the status of property from exempt to taxable. Would Riverfront suggest that the only circumstance where the marinas would be exempt requires that no charge be imposed for the use of these facilities?

To the contrary, Riverfront filed suit to require the City Marina and Fisherman's

Wharf Marina to pay taxes and, as a result, require the City to impose higher dockage and fuel charges. If the municipally-owned and operated marinas were required to charge higher fees, Riverfront would be able to charge higher fees to residents seeking access to the waterway, and thereby generate more profits.

Without overstating the import of the trial court's decision, if the mere presence of competition with private endeavors were determinative, the exempt status of many city-owned and operated properties would be removed. For example, there are a great many municipally-owned golf courses, tennis courts, water parks, and sports facilities that effectively compete with privately owned developers and facilities. Municipally-owned and operated zoos, theatres, and concert halls also compete with similar, privately owned facilities. Municipal transportation systems, including bus terminals and rail facilities, compete with private transportation providers. Even a developer of a residential subdivision offering nature paths, bike trails, and walkways could complain that similar facilities should not be offered by municipalities so as to encourage individuals to purchase homes in the subdivision and, if so, the city should be required to pay

31 taxes. In effect, cities would be highly restricted in the facilities made available to its residents and visitors without incurring taxation.3 Exemption of municipal property should be the rule, however, and taxation should be the exception thereto.

Saunders v. City of Jacksonville, 25 So.2d 648 (Fla. 1946).

Riverfront briefly argues that the district court incorrectly relied upon bond validation cases discussing municipal or public purpose. (IB-21-22, 33-34)

In City of Gainesville, this Court did distinguish precedent discussing Article VIII,

Section 2(b) from Article VII, Section 3(c) of the Florida Constitution. 958 So.2d at 262-63. This Court observed that "not every municipal activity that the

Legislature either declined to prohibit after the 1968 revision, or had authorized in older cases relied upon in construing the 1968 municipal powers provisions, was intended to also qualify for the constitutional ad valorem tax exemption in article

VII, section 3(a)." Id. at 263.

The district court, however, rejected Riverfront's argument regarding this issue. As the Court stated:

Riverside argues that we should not consider Daytona Beach Racing because it discusses public purpose in the context of municipal bond validation. Riverside relies solely on Sebring Airport Authority v. McIntyre, 642 So.2d 1072 (Fla.1994). Sebring indeed states that the definition of public purpose in bond validation is not analogous to tax exemption cases. Id. at 248, 250. We

3 The net effect would be for the municipality to increase its ad valorem tax millage and/or user fees to pay taxes to the county and school board.

32 note, however, that we are not applying bond validation principles here, and even if we were, Sebring only discusses this in the context of government-private cases (i.e. cases involving a private lessor or operator of municipal property). See id. The present case involves a government-government situation (i.e. property is municipally owned and operated). Sebring is silent on such cases. Thus, our reading of Sebring does not render Daytona Beach Racing inapplicable.

City of Ft. Pierce, 195 So.2d at 1144, n.2.

The district court's decision is consistent with City of Gainesville.

Considering the long line of cases concluding that municipally owned marinas have traditionally been considered a valid municipal or public purpose, such a conclusion would be reached in both the bond validation and ad valorem taxation contexts under the Constitution.

At the end of its brief, Riverfront suggests that the only equitable thing to do is to tax the City Marina and Fisherman's Wharf Marina. (AB-44)

Equity concerns cannot trump the self-executing command of the Florida

Constitution that all "property owned by a municipality and used exclusively by it for municipal or public purposes shall be exempt from taxation." Art. VII, § 3(a),

Fla. Const. Whether it is "fair" for a private marina to be operated in competition with the city-owned marinas is irrelevant. The dispositive question is whether the municipally-owned marinas are essential to the health morals, safety, and general welfare of the people within the municipality, as described in City of Gainesville.

33 Here, there was ample evidence to support the conclusion that the City

Marina and Fisherman's Wharf Marina are something basic and necessary to the waterfront municipality of Fort Pierce. Exemption of municipal property should be the rule, and taxation should be the exception thereto. Green v. City of

Pensacola, 126 So.2d 566, 569 (Fla. 1961). This Court should answer the district court's certified question in the affirmative.

II. RIVERFRONT LACKS STANDING TO CONTEST THE EXEMPT STATUS OF THE CITY MARINA AND FISHERMAN’S WHARF MARINA.

Riverfront lacks standing to contest the exempt status of the City

The general rule is that, in the absence of a constitutional challenge, a taxpayer of a county has standing to bring an action against the proper public officials to restrain the unlawful exercise of the county’s taxing or spending authority only upon a showing of special injury to such taxpayer that is distinct from that sustained by every other taxpayer in the taxing unit. Dep’t of Revenue v.

Markham, 396 So.2d 1120 (Fla. 1981); Rickman v. Whitehurst, 74 So. 205 (1917).

4 The trial court held that Riverfront had standing. (R-6-1000-1001) The district court did not address the issue.

34 Before reaching the ultimate issue regarding the taxable status of the marina properties, it is first necessary to determine whether Riverfront has standing to challenge the property appraiser’s determination that portions were exempt from ad valorem taxation. Jones v. Dep’t of Revenue, 523 So.2d 1211 (Fla. 1st DCA

1988).

The evidence presented in the instant case failed to establish that

Riverfront suffered a special injury that is distinct from that sustained by every other taxpayer in the taxing unit. There is no sufficient disparity in dockage fees established in the record, and the owner's desire that all marinas in the area become more profitable does not support such a finding. Accordingly, Riverfront failed to establish standing under the general rule that requires a showing of special injury.

3(a) of the Florida Constitution. No claim was made that any statutory enactment is unconstitutional. See Markham (constitutional challenge to statute); Dep’t of

Admin. v. Horne, 269 So.2d 659 (Fla. 1972) (constitutional challenge to appropriations act); but see Paul v. Blake, 376 So.2d 256 (Fla. 3rd DCA 1979) (no special injury required where taxpayers contended county action in exempting

35 leasehold interests in governmentally-owned property violated Article VII,

Sections 3(a) and 10(c) of the Florida Constitution).

Upon first impression, it is arguable that Paul could be construed to permit Riverfront standing to challenge the property appraiser’s determination that the City Marina and Fisherman’s Wharf Marina were exempt from taxation, with the exception of those portions leased to private entities for profit-making purposes. In Paul, as in the instant case, the taxpayers challenged the property appraiser’s decision to exempt municipally-owned property as unconstitutional. In that case, however, the two applicable constitutional provisions contemplated only ministerial fact finding on behalf of the property appraiser. Because the construction of certain improvements at the Miami International Airport had been financed with revenue bonds, any portion thereof that was leased was taxable under Article VII, section 10(c) of the Florida Constitution, which provides that:

(c) the issuance and sale by any county, municipality, special district or other local governmental body of (1) revenue bonds to finance or refinance the cost of capital projects for airports or port facilities, or (2) revenue bonds to finance or refinance the cost of capital projects for industrial or manufacturing plants to the extent that the interest thereon is exempt from income taxes under the then existing laws of the United States, when, in either case, the revenue bonds are payable solely from revenue derived from the sale, operation or leasing of the projects. If any project so financed, or any part thereof, is occupied or operated by any private corporation, association, partnership or person pursuant to contract or lease with the issuing body, the property interest

36 created by such contract or lease shall be subject to taxation to the same extent as other privately owned property.

(Emphasis added.) In Paul, the property appraiser only was required to determine what portions were leased; the conclusion that such portions were taxable was plainly mandated by the Florida Constitution.

In the instant case, Riverfront challenged the property appraiser’s judgment decision regarding the correct application of case law and the Florida

Constitution to the taxable status of the marinas owned and operated by the City and FPRA. If Paul were broadly applied to all taxpayer challenges to particular decisions made by the property appraiser implicating the constitution, the proverbial exception would swallow the rule. Every decision by the property appraiser regarding the valuation of property or entitlement to an exemption has, at its foundation, a constitutional basis. The better rule would be to limit the application of Paul to the particular facts and constitutional provisions present in that case but conclude that Riverfront lacks standing to contest the property appraiser's decision regarding the exempt status of property owned by other entities.

37 CONCLUSION

Based upon the aforementioned arguments and authorities, this Court respectfully is requested to answer the Fourth District Court's certified question in the affirmative and to approve its decision. In the alternative, this Court is requested to determine that Riverfront lacks standing to contest the property appraiser's decision regarding the exempt status of property owned by other entities.

/s/ Loren E. Levy______Loren E. Levy Fla. Bar No. 0814441 Jon F. Morris Fla. Bar No. 113037 The Levy Law Firm 1828 Riggins Lane Tallahassee, Florida 32308 Telephone: 850/219-0220 Facsimile: 850/219-0177 E-mail: [email protected] [email protected]

Counsel for Respondent, Ken Pruitt St. Lucie County Property Appraiser

38 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished Via E-Mail on this the 8th day of December 2016 to:

Jerry Stouck, Esquire Greenberg Traurig LLP 2101 L Street N.W., Suite 1000 Washington, D. C. 20037 E-mail: [email protected]

Brigid F. Cech Samole, Esquire Greenberg Traurig, P.A. Wells Fargo Center, Suite 4400 333 Southeast Second Avenue Miami, Florida 33131 E-mail: [email protected] [email protected]

Robert P. Elson, Esquire Assistant Attorney General Office of the Attorney General Revenue Litigation Bureau PL 01 – The Capitol Tallahassee, Florida 32399-1050 E-mail: [email protected] [email protected]

Robert V. Schwerer, Esquire James T. Walker, Esquire Hayskar, Walker, Schwerer, Dundas & McCain, P.A. 130 South Indian River Drive, Suite 304 Fort Pierce, Florida 34950 E-mail: [email protected] [email protected]

39 Benjamin K. Phipps, Esquire Phipps & Howell Post Office Box 1351 Tallahassee, Florida 32302 E-mail: [email protected] [email protected]

Harry Morrison, Jr., Esquire Kraig Conn, Esquire Florida League of Cities Post Office Box 1757 Tallahassee, Florida 32302 E-mail: [email protected] [email protected]

/s/ Loren E. Levy______Loren E. Levy

CERTIFICATE OF COMPLIANCE

The undersigned counsel for the respondent certifies that the font size and style used in the foregoing Answer Brief is 14 Times New Roman and complies with the font requirement of Florida Rule of Appellate Procedure

9.210(a)(2).

/s/ Loren E. Levy______Loren E. Levy