Today in Tallahassee, the First District Court of Appeal (1st DCA) reversed an Aug. 21 circuit court opinion from Judge Nikki Clark and ordered the Legislature's proposed constitutional amendment for review and repeal of sales tax exemptions stricken from the Nov. 5 general election ballot.

On Friday, Sept. 13, the court heard oral arguments from attorneys representing a consolidated appeal of various business groups, including the Florida Institute of CPAs, the Florida Association of Realtors, the Florida Association of Broadcasters, the Florida Manufacturing and Chemical Council, and the National Federation of Independent Business – Florida.

In a 3-0 opinion written by Chief Judge Michael Allen and concurred by Judges James Wolf and Philip Padovano, the court held that proposed constitutional Amendment 5 clearly violated the constitutional and statutory requirements for constitutional amendments to be presented to the voters in "clear and unambiguous" language.

The specific grounds for the court's decision focused on the fact that the ballot summary gave the misleading impression that the 12-member joint committee to be created by the amendment would only review and make recommendations on the repeal of statutory sales tax exemptions, when in fact a majority (seven members) would have the power to repeal them. In addition, the opinion noted that the ballot summary advised voters of the full Legislature’s ability to rescind a majority decision of the committee. However, lawmakers would have the power only to accelerate the repeal of exemptions or reinstate them by passage of general law after a repeal had taken effect. Finally, the ballot summary did not accurately reflect when decisions of the joint tax-review committee would take effect.

“Since the inception of this idea by Senate President John McKay, this proposal has been a ruse. It has been exposed at every level for what it is,” said Lloyd “Buddy” Turman, FICPA CEO-Executive Director. “We have argued that this proposed constitutional amendment is not the way to make substantive tax law changes. These decisions should be made by the full Legislature and a governor duly elected by the voters of Florida. We are very pleased the court has recognized these concerns and others.”

As stated by Chief Judge Allen in the opinion, “In light of the various ballot summary deficiencies, the summary would not fairly, clearly, and unambiguously advise voters of the substance of the proposed constitutional amendment. It therefore fails to satisfy the constitutional and statutory fair notice requirements. The trial court order under review is accordingly reversed. And we order that the ballot title and summary included in House Joint Resolution 833 be stricken from the November 5, 2002, general election ballot.”

Earlier this summer, the Florida Supreme Court refused to hear the case and sent it back to the First DCA for consideration. This action was widely assumed to give the DCA final word in the case. Therefore, the court declined in today's decision to certify the case again to the Supreme Court.

The Florida Senate and the Attorney General have until 9 a.m. Thursday, Sept. 19, to file a motion for rehearing, clarification or certification to the Florida Supreme Court. Any response to a motion to appeal must be filed before 3:30 p.m. that same day. The time frame for any appeals would be tight, considering the Florida Secretary of State Jim Smith must certify ballot language to all 67 counties’ elections supervisors by Friday, Sept. 20.

“We are cautiously optimistic that this court battle will end tomorrow,” said FICPA
President Winston K. Howell. “Our position has consistently been to oppose the concept of seven members of the Legislature making substantive tax law changes. Floridians should be given the opportunity to see the votes of all 160 members of the Legislature.”

The FICPA will keep you informed as this issue progresses over the next 24 hours. To view the full DCA opinion, please click on http://www.1dca.org/.

If you need additional information, please e-mail the Governmental Affairs Department at govaffairs@ficpa.org or call (800) 342-3197, Ext. 201 (within Florida only) or (850) 224-2727, Ext. 201.