Hillsborough County Transportation Surtax Charter Amendment

– Summary by Christopher Perrigan

This case involves a charter amendment (Article 11) that was voted on and approved by citizens of Hillsborough County. The charter amendment approved a transportation surtax and included directives for allocating the tax proceeds. Although approved by voters, the Florida Supreme Court struck the Article 11 in its entirety because its provisions on spending directives conflicted with state law that gives the county commission the authority to allocate the generated funds. The Florida Supreme Court accepted pass-through jurisdiction because the question involves an issue of great public importance that required immediate resolution by the Court.

Prior to coming to the Florida Supreme Court, the circuit court held that the surtax itself was constitutional, but that the spending directives provisions conflicted with section 212.055(1), Florida Statutes (2018), which authorized enactment of the transportation surtax and granted the county commission discretion concerning the application of the surtax proceeds as provided in statute. Under the circuit court’s reasoning, the invalid portions of the amendment could be properly separated from the valid portions.

Section § 212.055, F.S. authorizes the legislature to levy discretionary sales surtax by a majority vote of the electorate to a charter amendment at a rate of up to 1 percent. Importantly, this statute states that “[p]roceeds from the surtax shall be applied to as many or as few of the uses enumerated . . . [specifically stated in the statute] in whatever combination the county commission deems appropriate.” (Emphasis added). The Court noted that this statutory provision must be coupled with the plenary authority regarding surtax’s that the Florida Constitution has preempted to the state legislature. That
authority in the Florida Constitution states: “[n]o tax shall be levied except in pursuance of law,” and that “[n]o state ad valorem taxes shall be levied on real estate or tangible personal property,” and that “[a]ll other forms of taxation shall be preempted to the state except as provided by general law.”

The County, knowing that the legislature had set out specific provisions regarding sur taxes, included in their charter amendment stating “[t]he proceeds of the surtax shall be distributed and disbursed in compliance with [section 212.055(1), Florida Statutes,] and in accordance with the provisions of . . . article 11.” Article 11 provided that 45% of the surtax proceeds are to be distributed to the Hillsborough Area Regional Transit Authority, 54% of the proceeds are to be generally distributed in accordance with a statutory formula based on populations as well as other provisions of article 11, and finally 1% of the proceeds was to be designated for the planning and development of the metropolitan planning organization in accordance with the provisions of article 11. Oversight of the funds were governed by an independent oversight commission (IOC). Furthermore, the article 11 contained a severability provision that stated in the event of a conflict with Florida statute, Florida statute will prevail and only that provision creating the conflict will be held invalid.

The Supreme Court heard the case to decide whether Article 11 was reconcilable with its conflicts with statute. The opponents of the article 11 argued that the distribution formula violated the statutory authority of the Hillsborough County Commission in how the proceeds should be spent. However, proponents of article 11 argued that its provisions supplement statute rather than conflict with it. Furthermore, the proponents argue that there were adequate measures in place that remedied any conflict with statute and struck any portion that was deemed unconstitutional.

The Court held against article 11, stating the Florida Constitution “prohibits any charter county from supplanting or overriding state law through either an ordinance or a charter provision.” The Court explained that there were inconsistencies with general law because article 11 contained specific provisions detailing the distribution scheme of the proceeds when section 212.055(1)(d), in fact, gave the county commission express discretionary authority to distribute surtax proceeds. The Court reasoned that the legislature could have made the choice to allow the proceeds of the surtax to be allocated based on provisions of a charter amendment, just as it allows the surtax to be adopted by the charter amendment, but that they did not do that. As to the argument that there are remedies in place to resolve conflicts with state law, and that state law prevails in the event of a conflict, the court held that these words were “nothing more than a meaningless truism” because of the rule of statutory interpretation that “ambiguities in a text be resolved in favor of a reasonable reading that avoids a determination of [constitutional] invalidity.”

The Court struck down the circuit court ruling that the valid portions of article 11 can be severed by the invalid portion of it. Utilizing a severability analysis set out in Cramp v. Bd. of Pub. Instruction of Orange Cnty., 137 So. 2d 828, 830 (Fla. 1962), the Court held “[t]he portions of article 11 that violate the authority of the county commission under the surtax statute are not “functionally independent” from the portion of article 11 imposing the sales surtax.” Similarly, while it is severability of a surtax from invalid provisions are possible, here, “it is equally clear that ‘the legislative purpose expressed in the valid provisions’ cannot ‘be accomplished independently of those which are void’ and that the valid and invalid elements of article 11 are therefore ‘so inseparable in substance’ that it cannot be said that the voters would have adopted ‘the one without the other.’” (citing Cramp, 137 So. 2d at 830).

In conclusion, the Court held that article 11’s core provisions are inconsistent with state section 212.055 and because both the valid and invalid provisions are necessary to effectuate the purpose of the statute, article 11 is unconstitutional in its entirety. Justice Labarga dissented, pointing out that home rule authority is stronger than what the majority set it out to be. He believed that the voters of article 11 expressed a clear purpose and desire to improve their transportation assets, and that article 11 “still adequately defined its primary purpose: to provide funding for transportation infrastructure.” Justice Labarga believed that the will of the voters in a home rule charter should not be overturned unless absolutely necessary.