STATE OF FLORIDA AND DEPARTMENT OF REVENUE v. FLOWERS, D/B/A FLOWERS SEAFOOD, 643 So.2d 644, 19 FLW D2104, 1994 Fla.1DCA 6900

Transcription

1 STATE OF FLORIDA AND DEPARTMENT OF REVENUE v. FLOWERS, D/B/A FLOWERS SEAFOOD, 643 So.2d 644, 19 FLW D2104, 1994 Fla.1DCA 6900 STATE OF FLORIDA and DEPARTMENT OF REVENUE OF THE STATE OF FLORIDA, Appellants, v. DENNIS FLOWERS, d/b/a FLOWERS SEAFOOD, Appellee. 1st District. Case No Opinion filed Sep 29, HISTORY An Appeal from the Circuit Court for Leon County. J. Lewis Hall, Judge. SUBSEQUENT HISTORY Corrected, 19 FLW D2286. Cause dismissed, 648 So.2d 722. COUNSEL Robert A. Butterworth, Attorney General, Joseph C. Mellichamp, III, Senior Assistant Attorney General, Eric J. Taylor, Assistant Attorney General, and C. Lynne Chapman, Assistant Attorney General, Tallahassee, for Appellants. Frank J. Santry of Granger, Santry, Mitchell & Heath, P.A., Tallahassee, for Appellee. HEADNOTES Taxation-Saltwater fisheries-imposition of surcharge to be paid by wholesale dealers on oysters harvested from waters of

2 Apalachicola Bay-Party whose rights were not affected by statute had no standing to challenge constitutionality-error to find that statute violated single subject requirement-error to find that statute violated constitutional provision prohibiting local laws relating to occupations regulated by state-statute is a general law rather than a special or local law-error to find that statute violated constitutional provision prohibiting unreasonable classifications of political subdivisions-error to find that statute violated constitutional prohibition of local laws relating to assessment of taxes for state purposes. PER CURIAM. OPINION This cause is before us on appeal from a summary final judgment finding sections 8 and 9 of chapter , Laws of Florida, to be violative of various provisions of the Florida Constitution.(FN*) Appellants raise numerous procedural and substantive challenges to the final order. We address (1) whether the trial court erred in holding that appellee had standing to challenge section 8 of chapter ; (2) whether the trial court erred in holding that section 9 of chapter was violative of the single-subject requirement of article III, section 6 of the Florida Constitution; (3) whether the trial court erred in holding that section 9 of chapter was violative of article III, section 11(a)(20) of the Florida Constitution, which prohibits local laws relating to occupations regulated by the State; (4) whether the trial court erred in holding that section 9 of chapter was violative of article III, section 11(b) of the Florida Constitution, which prohibits unreasonable classifications of political subdivisions; and (5) whether the trial court erred in holding that section 9 of chapter was violative of article III, section 11(a)(2), which prohibits local laws relating to the assessment of taxes for state purposes. Appellee lacked standing to challenge section 8, chapter , Laws of Florida, under which revenue collected in compliance with the oyster surcharge enacted in section 18, chapter , Laws of Florida, prior to July 1, 1990, was deemed lawfully collected. A party seeking an adjudication as

3 to the constitutionality of a statute must show that he or she has been charged with violating the statute, is threatened for prosecution for violation of the statute, or that the adjudication requested will otherwise affect his or her rights. Martinez v. Scanlan, 582 So.2d 1167, 1171 (Fla. 1991); Dixie Ins. Co. v. Gaffney, 582 So.2d 64 (Fla. 1st DCA 1991); Register v. Pierce, 530 So.2d 990 (Fla. 1st DCA 1988), rev. denied, 537 So.2d 569 (Fla. 1988). Appellee did not enter the wholesale seafood business until August 1, Section 8 is therefore inapplicable to him. Appellee has no need or colorable right that will be directly affected by a ruling on the constitutionality of section 8. We therefore reverse as to the first issue. As to the second issue, whether the trial court erred in finding chapter violative of the single-subject rule of article III, section 6, of the Florida Constitution, we must also reverse. In its order below, the trial court offered no explanation for its conclusion that the challenged statute violated the single-subject rule. We will not burden this opinion by listing the titles of each of the 12 sections of chapter , Laws of Florida. Suffice it to say, however, our review of the record satisfies us that each section has a "natural or logical connection" to the stated purpose of the statute, which is an "act relating to salt water fisheries." See Martinez v. Scanlan, 582 So. 2d at 1172; Chenoweth v. Kemp, 396 So.2d 1122 (Fla. 1981); compare State v. Leavins, 599 So.2d 1326, (Fla. 1st DCA 1992). We therefore reverse as to the second issue. The last three issues involve the constitutionality of section 9, chapter , Laws of Florida. Section 9, codified at section (3), Florida Statutes (Supp. 1990), provides: Subsection (3) of section , Florida Statutes, as enacted in section 18, chapter , Laws of Florida is hereby reenacted and amended to read: Wholesale and retail saltwater products dealers; regulations

4 (3) Apalachicola Bay oyster surcharge.-- (a) For purposes of this section, "bag" means an amount of oysters with shells weighing approximately 60 pounds. (b) Effective October 1, 1989, and not withstanding the provisions of s (21), there shall be assessed a surcharge of 50 cents on each bag of oysters to be paid by the wholesale dealer first receiving, using, or selling the oysters after harvesting from the waters of Apalachicola Bay.... s. 9, Ch , Laws of Florida. Section 9 goes on to reenact section 18, chapter verbatim. We reverse on each of these issues based on our decision in State v. Leavins, 599 So.2d In Leavins, we held that section 18 of chapter , from which section 9, chapter was taken, did not violate either article III, section 11(a)(20) [prohibiting local laws or general laws of local application relating to occupations regulated by the state] or article III, section 11(b) [prohibiting unreasonable classification in general laws of political subdivisions or other government entities]. Leavins, 599 So. 2d at Although the Leavins case does not directly address section 11(a)(2), the reasoning in Leavins is applicable. The analysis in Leavins was not limited to whether chapter violated the prohibition against local laws concerning regulations of occupations found in article III, section 11(a)(20); instead, it first addressed the broader question of whether chapter was a general or local law. We held that chapter did not violate article III, section 11 because it was a general law and not a special or local law. Id. at Section 9, chapter , which was taken almost verbatim from section 18, chapter , is therefore also a general law rather than a special or local law. Section 11(a)'s prohibition against special or general laws of local application pertaining to various subjects is inapplicable. Therefore, section 9, chapter , does not violate the specific prohibition found in section 11(a)(2) against special or local laws pertaining to assessment or

5 collection of taxes for state or county purposes. REVERSED. KAHN and MICKLE, JJ., CONCUR. BOOTH, J., DISSENTS IN PART AND CONCURS IN PART W/WRITTEN OPINION. BOOTH, Judge, DISSENTING IN PART AND CONCURRING IN PART. I respectfully dissent, and would affirm the trial court's holding that section 9 of chapter , Laws of Florida, violates article III, section 11(a)(2) of the Florida Constitution prohibiting local laws relating to the assessment of taxes for state purposes. In all other respects, I would concur with the majority. Section (3), Florida Statutes, provides a surcharge of 50 cents "on each bag of oysters to be paid by the wholesale dealer first receiving, using, or selling oysters after harvesting from the waters of Apalachicola Bay". There is no equivalent surcharge imposed on any of the other more than 54 shellfish harvesting areas or on the other 19 harvesting areas having commercial landings for oysters in the state. The trial court granted appellee's motion for summary judgment, declaring chapter unconstitutional on a number of grounds, including the ground pertinent to this dissent: violation of article III, section 11(a)(2), prohibiting local laws pertaining to the assessment or collection of taxes for state or county purposes. Three months after the trial court entered this order, this court decided State v. Leavins, 599 So.2d 1326 (Fla. 1st DCA 1992), holding the statute was not violative of article III, section 11(a)(20), prohibiting special laws relating to occupations regulated by a state agency, and article III, section 11(b), which prohibits unreasonable classifications of political subdivisions in general laws. In reaching these conclusions, this court relied principally on the importance to the state of the oyster industry centered upon

6 Apalachicola Bay and held the challenged surcharge and other provisions of chapter , Laws of Florida, to be a valid exercise of the state's police power. 599 So. 2d at The pertinent holding of Leavins was that the Apalachicola Bay oyster tax, which is collected from seafood wholesalers dealing in Apalachicola Bay oysters, is not a local law relating to an occupation (seafood wholesaling) regulated by the state. The court's reasoning was that a law will be considered general if it operates universally throughout the state or uniformly within a reasonable classification. Leavins holds that because the state has a paramount concern with the preservation of the oyster industry centered in Apalachicola Bay, the regulation of those dealing in Apalachicola Bay oysters was a reasonable exercise of the state's police power. 599 So. 2d at As persuasive as Leavins may be on this point, Leavins must be distinguished since the question raised here was not there presented. The instant case challenges the statute as a local law relating to the assessment of taxes for state purposes and is therefore prohibited under article III, section 11(a)(2), of the Florida Constitution. A discriminatory classification can be upheld as necessary to the proper exercise of the police power, but will not stand as a basis for the unequal imposition of tax. The State concedes that the statute is a revenue-raising measure. The tax is imposed for the stated purpose of providing(fn 1): [A] steady revenue source for oyster rehabilitation in the Apalachicola Bay by establishing...an oyster surcharge to be used for oyster relaying, transplanting and shell planting...these fees will also fund educational programs for licensed oyster harvesters on oyster biology, aquaculture, boating and water safety, small business management, and other relevant topics. Moreover, chapter , section 9, does not, as the State contends, merely impose a tax on the privilege of conducting a particular type of business. Section (3), Florida Statutes (Supp. 1990), entitled "Apalachicola Bay Oyster

7 Surcharge," provides that "there shall be assessed a surcharge of 50 cents on each bag of oysters(fn 2)...from the waters of Apalachicola Bay." Wholesale dealers who do not buy and sell Apalachicola Bay oysters pay no tax, and those who deal in oysters from other areas as well as Apalachicola Bay are only required to pay the tax on oysters identified as being from Apalachicola Bay; all other oysters are exempt. Thus, the tax imposed is a tax on fungible goods or produce, to-wit: oysters, and it is limited to those oysters taken from Apalachicola Bay. Oysters from St. Andrews Bay in Bay County, for example, are not subject to the tax, giving those harvesting and dealing in Bay County oysters a competitive advantage over the harvesters and dealers in Franklin County. The Legislature enjoys broad discretion in formulating tax statutes. People Against v. Department of Business Regulation, 587 So.2d 644 (Fla. 1st DCA 1991). However, the State has not cited, nor have we been able to find after extensive research, any authority for the Legislature to single out the produce of one area for taxation, while other like produce in other parts of the state are exempted from tax. To the contrary, in cases in which appellate courts have sustained such taxes, the tax has been imposed state-wide on all like produce. E.g., State Department of Citrus v. Griffin, 239 So.2d 577 (Fla. 1970); C.V. Floyd Fruit Co. v. Florida Citrus Commission, 175 So. 248, 128 Fla. 565 (Fla. 1937). To do otherwise unfairly burdens those persons who depend for their livelihood on the produce which has been subjected to taxation. The State relies on subsection (f) of the statute, which provides that the Department of Revenue collect the oyster tax for transfer into the Apalachicola Bay Conservation Trust Fund for the benefit of Apalachicola Bay. The difficulty with this argument, however, is that the two provisions are not interdependent and the validity of the tax must be determined independently of the special purpose stated. This is a tax, not a police power exaction, and whether the funds collected go into the general revenue or into some special fund is not determinative of validity of the tax. There is nothing to prevent the Legislature from amending the statute in question to provide for another use of the funds that do not benefit the

8 Apalachicola Bay. What is presented here is a revenue-raising measure in the form of a tax on the produce of one area of the State. This tax is distinct from purely regulatory exactions or fees imposed for inspection and licensing that primarily support the regulatory purposes. See City of Daytona Beach Shores v. State, 483 So.2d 405 (Fla. 1985); and City of Panama City v. State, 60 So.2d 658 (Fla. 1952). This statute represents a significant departure from previous uses of the tax power which have been held reasonable. I would affirm the trial court's holding that chapter , section 9, Laws of Florida, contravenes the article III, section 11(a)(2) prohibition against local laws relating to the assessment of revenues for state purposes. * Section 9 is codified as section (3), Florida Statutes (Supp. 1990). FOOTNOTE 1 House Analysis and Economic Impact Statement of the House of Representatives Natural Resources Committee, as revised by the Committee on Appropriations for House Bill No dated May 25, FOOTNOTE 2 Section (3)(a), Florida Statutes, provides, "For purposes of this section, `bag' means an amount of oysters with shells weighing approximately 60 pounds."