IN THE SUPREME COURT STATE OF FLORIDA. CASE NO. SC First District Court of Appeal Case No. 1D LEONARD J. ACCARDO, et al, Petitioners,

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1 IN THE SUPREME COURT STATE OF FLORIDA CASE NO. SC First District Court of Appeal Case No. 1D LEONARD J. ACCARDO, et al, Petitioners, v. GREGORY BROWN, Property Appraiser of Santa Rosa County, et al, Respondents. FIRST AMENDED BRIEF OF RESPONDENTS GREGORY BROWN AND STAN NICHOLS ON JURISDICTION ON REVIEW FROM THE FIRST DISTRICT COURT OF APPEAL Elliott Messer, Esq. Florida Bar No Thomas Findley, Esq. Florida Bar. No Messer, Caparello & Self, P.A Centennial Place Tallahassee, Florida Telephone (850) Roy Andrews, Esq. Florida Bar No Lindsay, Andrews & Leonard P.O. Box 586 Milton, Florida Telephone (850) Counsel for Respondents

2 TABLE OF CONTENTS Page TABLE OF CONTENTS... i TABLE OF CITATIONS...ii, iii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 2 ARGUMENT... 4 I. THE FIRST DISTRICT OPINION DOES NOT DIRECTLY AND EXPRESSLY CONFLICT WITH Robbins v. Mt. Sinai Medical Center, Inc., 748 So. 2d 349 (Fla. 3d DCA 1999)... 4 II. III. IV. THE FIRST DISTRICT OPINION DOES NOT DIRECTLY AND EXPRESSLY CONFLICT WITH Markham v. Broward County, 825 So. 2d 472 (Fla. 4th DCA 2002)... 6 THE FIRST DISTRICT OPINION DOES NOT DIRECTLY AND EXPRESSLY CONFLICT WITH Leon County Educational Facilities Authority v. Hartsfield, 698 So. 2d 526 (Fla. 1997)... 7 THE FIRST DISTRICT OPINION DOES NOT EXPRESSLY AFFECT A CLASS OF CONSTITUTIONAL OFFICERS... 7 V. THE FLORIDA SUPREME COURT SHOULD NOT EXERCISE ITS DISCRETION TO ACCEPT JURISDICTION OF THIS CASE... 8 CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE i

3 Cases TABLE OF CITATIONS Page 1108 Ariola v. Jones, No. 1D (Fla. 1st DCA July 18, 2011)... 9 Accardo v. Brown, No. 1D (Fla. 1st DCA April 21, 2010)... 9 Alvin s Stores, et al. v. Jones, No. 1D (Fla. 1st DCA Oct. 22, 2007)... 9 AMFI v. Jones, No. 1D (Fla. 1st DCA Oct. 28, 2008)... 9 AMFI v. Kinney, 360 So. 2d 415 (Fla. 1978)... 9 Archer v. Marshall, 355 So. 2d 781 (Fla. 1978)... 6, 9 Bancroft v. City of Jacksonville, 27 So. 2d 162 (Fla. 1946)... 7 Department of Revenue v. Johnston, 442 So. 2d 950 (Fla. 1983)... 6, 7 Hardee v. State, 534 So. 2d 706 (Fla. 1988)... 4 Leon County Educational Facilities Authority v. Hartsfield, 698 So. 2d 526 (Fla. 1997)... 2, 3, 7 Marathon Air Services, Inc. v. Higgs, 575 So. 2d 1340 (Fla. 3d DCA 1991)... 5 Markham v. Broward County, 825 So. 2d 472 (Fla. 4th DCA 2002)... 2, 6 Parker v. Hertz Corp., 544 So. 2d 249 (Fla. 2d DCA 1989)... 5 Portofino Condominium Assoc. v. Jones, No. 1D (Fla. 1st DCA Aug. 5, 2008)... 9 Reaves v. State, 485 So. 2d 829 (Fla. 1986)... 4 ii

4 Robbins v. Mt. Sinai Medical Center, 748 So. 2d 349 (Fla. 3d DCA 1999) , 4, 5, 6 Sebring Airport Authority v. McIntyre, 783 So. 2d 238 (Fla. 2001) Spradley v. State, 293 So. 2d 697 (Fla. 1974)... 8 Straughn v. Camp, 293 So. 2d 689 (Fla. 1974)... 9 Ward v. Brown, 919 So. 2d 462 (Fla. 1st DCA 2005)... 4, 5, 9 Williams v. Jones, 326 So. 2d 425 (Fla. 1975)... 3, 6, 8, 9 Florida Constitution Art. V, 3, Fla. Const.... 2, 3, 4 Other Authorities Fla.R.App.P iii

5 STATEMENT OF THE CASE AND FACTS The Petitioners claim that their privately held condominium units and other real property interests on Santa Rosa Island are exempt from local government ad valorem taxation. The trial court determined that these interests were subject to local government ad valorem taxes. The First District Court of Appeal affirmed. The tax assessments at issue relate to real property leased from Santa Rosa County under 99-year leases with options to renew for additional 99-year periods. In most instances, the leases were directed to developers, who built and sold condominium units to the Petitioners. The Petitioners concede that their properties are used for purely private purposes. The Petitioners maintain all of the benefits and burdens of ownership. They enjoy complete dominion and control over their condominium units and other realty. They enjoy rental income, capital appreciation and the benefits of depreciation deductions. The Petitioners bear the burdens of ownership as well, including maintenance, repair, insurance and the contractual obligation to pay taxes. Accordingly, the First District held that the Petitioners are the equitable owners of their real property interests. 1

6 SUMMARY OF ARGUMENT The opinion from the First District provides no basis for conflict jurisdiction under Article V, section 3(b)(3) of the Florida Constitution. The Petitioners attempt to imply a conflict between the First District opinion and other cases. This Court has already rejected the same argument for jurisdiction in a prior case from Santa Rosa Island. See Ward v. Brown, Jurisdictional Brief of Petitioners, Case Nos. SC , SC This Court determined that it should decline to accept jurisdiction. Order Feb. 1, 2006, Case Nos. SC , SC The First District did not express conflict with any of the cases cited in the Petitioners brief. All of these cases, including Robbins v. Mt. Sinai Medical Center, Inc., 748 So.2d 349 (Fla. 1 st DCA 2000), are distinguishable. Robbins involved an equipment lease, in which the debate focused on whether an option was nominal. Clearly, it was not nominal, as the option was for purchase at fair market value. Moreover, the lessor had the right to veto the exercise of the option. Robbins has no relevance to the unique situation on Santa Rosa Island. The First District opinion did not even cite the other cases relied on by Petitioners, Markham v. Broward County, 825 So.2d 472 (Fla. 4th DCA 2002) and Leon County Educational Facilities Authority v. Hartsfield, 698 So.2d 526 (Fla. 1997)( LCEFA ). The Markham Court did not address equitable ownership, which 2

7 was the pivotal issue in this case. The LCEFA Court found equitable ownership to be present on grounds similar to those cited by the First District. Thus, these cases do not conflict with the First District s opinion in this case. This Court also lacks jurisdiction under Article V, Section 3(b)(3) of the Florida Constitution, which provides the Court may review any decision of a district court of appeal that... expressly affects a class of constitutional or state officers. The First District did not express any impact on property appraisers as a class. Instead, the Court s focus was on the private ownership rights of the Petitioners in the unique context of Santa Rosa Island. The opinion has no impact on the duties to be performed by any class of constitutional officers. The law relating to Santa Rosa Island tax matters has been crystallized by 40 years of case law, including four Florida Supreme Court cases and six First District cases. This Court has held these individuals on Santa Rosa Island must pay local government real property taxes at parity with other private owners. Williams v. Jones, 326 So.2d 425, 432 (Fla. 1975). The Williams Court held that there is no constitutional exemption upon which the Petitioners can rely. Any attempt to create one would undoubtedly be discriminatory and violative of the equal protection provisions of the Florida and United States Constitutions. Id. Given this well established law, this Court should decline to take jurisdiction. 3

8 ARGUMENT I. THE FIRST DISTRICT OPINION DOES NOT DIRECTLY AND EXPRESSLY CONFLICT WITH Robbins v. Mt. Sinai Medical Center, Inc., 748 So. 2d 349 (Fla. 3d DCA 1999). To establish conflict jurisdiction, the Petitioners must show the opinion at issue directly and expressly conflicts with another district court or the Florida Supreme Court on the same question of law. Art. V, 3(b)(3), Fla.Const.; Fla.R.App.P (a)(2)(A)(iv). The Petitioners ignore the only appropriate basis upon which the question of conflict jurisdiction turns, i.e., the District Court s opinion. Hardee v. State, 534 So. 2d 706, 708 n.* (Fla. 1988) ("for purposes of determining conflict jurisdiction, this Court is limited to the facts which appear on the face of the opinion"); Reaves v. State, 485 So. 2d 829, 830 n.3 (Fla. 1986). This Court previously declined jurisdiction based on the same argument. After the First District decided Ward v. Brown, 919 So. 2d 462 (Fla. 1st DCA 2005), a subset of these Petitioners asked this Court to accept jurisdiction based on Robbins v. Mt. Sinai Medical Center, 748 So.2d 349 (Fla. 3d DCA 1999). The Petitioners argued that Ward expressly and directly conflicts with Robbins. See Jurisdictional Brief of Petitioners, Case Nos. SC , SC This Court determined that it should decline to accept jurisdiction. Order of Feb. 1, 2006, Case Nos. SC , SC

9 In this case, the First District expressed no conflict with Robbins. Instead, the opinion cites Robbins with approval. The court noted that an option may be relevant in some contexts. Nevertheless, an option has never been a prerequisite to equitable ownership. See Ward v. Brown; Marathon Air Services, Inc. v. Higgs, 575 So. 2d 1340 (Fla. 3d DCA 1991); Parker v. Hertz Corp., 544 So. 2d 249 (Fla. 2d DCA 1989) (finding lessees had ownership without an option). In Robbins, the lessee had a so-called option (subject to Lessor s approval ) to purchase the equipment at fair market value. Id. at 350. Lessee does not qualify as an equitable owner of the properties.... Lessee did not have a true option to purchase the leased properties in the first place. By virtue of the properties leases, Lessee could either purchase the properties for fair market value, return the properties to Lessor or renew the properties leases for a new term.... any choice exercised by Lessee was subject to Lessor s approval. In essence, this was not an option to purchase... Id. at The emphasis of the holding was that, if there was an option, it would have to be nominal to support equitable ownership. Id. at 351. Certainly, an illusory option on a short term equipment lease with a dubious option to buy at fair market value is distinguishable from this case. The Robbins Court certainly did not imply the broad holding urged by Petitioners. This is clear not only from Ward, Marathon Air, and Parker, but also from numerous Supreme Court cases, recognizing rights tantamount to ownership without an option to 5

10 purchase. Williams v. Jones, 326 So.2d 425, 436 (Fla. 1975)(lease on Santa Rosa Island for a term of 99 years or more is tantamount to ownership of the fee ); Archer v. Marshall, 355 So.2d 781 (Fla. 1978)(on Santa Rosa Island: these leaseholders have the equivalent of fee simple ownership ). Because the First District expressed no conflict with Robbins, and because it is distinguishable, conflict jurisdiction is unavailable. Dept. of Revenue v. Johnston, 442 So.2d 950 (Fla. 1983). II. THE FIRST DISTRICT OPINION DOES NOT DIRECTLY AND EXPRESSLY CONFLICT WITH Markham v. Broward County, 825 So. 2d 472 (Fla. 4th DCA 2002) The Petitioners also fail to show how the First District opinion directly and expressly conflicts with Markham v. Broward County, 825 So. 2d 472 (Fla. 4th DCA 2002). The First District did not cite Markham v. Broward County, 825 So. 2d 472 (Fla. 4th DCA 2002), nor was there any implied conflict with Markham. While the First District focused on equitable ownership, the Markham decision did not address the issue. Thus, there is no rationale for conflict jurisdiction. Markham is also distinguishable, as there was no reference to lease terms or benefits and burdens of ownership. Distinguishable cases do not confer conflict jurisdiction. Johnston, 442 So.2d at 950. Thus, this Court does not have conflict jurisdiction on these grounds. 6

11 III. THE FIRST DISTRICT OPINION DOES NOT DIRECTLY AND EXPRESSLY CONFLICT WITH Leon County Educational Facilities Authority v. Hartsfield, 698 So. 2d 526 (Fla. 1997) The First District s opinion did not cite Leon County Educational Facilities Authority v. Hartsfield, 698 So. 2d 526 (Fla. 1997)( LCEFA ), nor did it imply conflict with LCEFA. Thus, the opinion did not directly and expressly conflict with LCEFA. To the contrary, both cases consistently relied on an analysis of the benefits and burdens of ownership to find equitable ownership. The LCEFA Court also held that equitable ownership can apply when the legal title holder would otherwise be immune. The LCEFA Court cited Bancroft v. City of Jacksonville, 27 So. 2d 162 (1946), in which the United States of America was the legal title holder, but the private party had equitable ownership. See LCEFA, 698 So. 2d at 528. The opinion at issue does not conflict with LCEFA, but instead affirms it. LCEFA is also distinguishable, as it involved the parking of legal title in an entity for financing purposes. Such facts bear no resemblance to the Santa Rosa Island situation. Therefore, this Court should decline jurisdiction. IV. THE FIRST DISTRICT OPINION DOES NOT EXPRESSLY AFFECT A CLASS OF CONSTITUTIONAL OFFICERS. Petitioners contend that the opinion below affects a class of constitutional officers. Yet, the opinion affects only those taxpayers on one solitary island. The First District cited some of the unique history of real property on Santa Rosa 7

12 Island. Given these unique circumstances, the only property appraisers affected are Mr. Brown in Santa Rosa County and Mr. Chris Jones in Escambia County. The essential holding that private condominium unit owners in this case should pay property taxes does not portend the addition of government property to the tax rolls by property appraisers statewide. In Spradley v. State, 293 So. 2d 697 (Fla. 1974), this Court held: A decision which affects a class of constitutional or state officers must be one which does more than simply modify or construe or add to the case law which comprises much of the substantive and procedural law of this state. Such cases naturally affect all classes of constitutional or state officers, in that the members of these classes are bound by the law the same as any other citizen. To vest this Court with certiorari jurisdiction, a decision must directly and, in some way, exclusively affect the duties, powers, validity, formation, termination or regulation of a particular class of constitutional or state officers. Id. at 701. The decision of the First District does not express or imply such an impact. Thus, this Court should not exercise jurisdiction on that basis. V. THE FLORIDA SUPREME COURT SHOULD NOT EXERCISE ITS DISCRETION TO ACCEPT JURISDICTION OF THIS CASE. This Court has addressed similar tax questions on Santa Rosa Island on four prior occasions. Each time, this Court has held that the private interests on Santa Rosa Island are not immune and should be taxed at parity with other private property. Williams v. Jones, 326 So. 2d 425, 430 (Fla. 1975); AMFI v. Kinney, 360 So. 2d 415 (Fla. 1978); Archer v. Marshall, 355 So.2d 781, 785 (Fla. 8

13 1978)(Afundamentally unfair for the Legislature to statutorily manipulate assessment standards and criteria to favor certain taxpayers over others ); Straughn v. Camp, 293 So. 2d 689 (Fla. 1974). 1 This Court has held that any statutory attempt to alter this would be futile, as the Florida Constitution controls: Basically, the appellants [on Santa Rosa Island] contend for a constitutional exemption from ad valorem real estate taxation where none exists and, if it did, such an exemption would undoubtedly be discriminatory and violative of the equal protection provisions of the Florida and United States Constitutions. Id. at 432 (emphasis added). This Court also held: To accept the [beach homeowners ] contention... would not only result in such leasehold interests being taxed on the reduced intangible personal property ad valorem rate but would also deprive the political subdivisions wherein the leaseholds are situated from raising revenues from such source in order to defray the costs of the services supplied to the users thereof, services which include, especially, the education of the children of such users. The holder of a lease on Santa Rosa Island requires no less police protection or education of his or her neighbor in the county who occupies under a fee simple title. 1 In addition, the First District has addressed the issue at least six times. Each time, the First District held that the taxpayers are subject to local property taxes. See 1108 Ariola v. Jones, No. 1D (Fla. 1 st DCA July 18, 2011); Accardo v. Brown, No. 1D (Fla. 1 st DCA April 21, 2011); Ward v. Brown, 919 So. 2d 462 (Fla. 1st DCA 2005); Alvin=s Stores et al. v. Jones, No (Fla. 1st DCA Oct. 22, 2007)(per curiam); Portofino Condominium Assoc. v. Jones, No (Fla. 1st DCA Aug. 5, 2008)(per curiam); AMFI v. Jones, No (Fla. 1st DCA Oct. 28, 2008)(per curiam). 9

14 Id. at 431 (emphasis added); see also Sebring Airport Authority v. McIntyre, 783 So. 2d 238, 250 (Fla. 2001) ( [The statute at issue] attempts to create an ad valorem tax exemption for private, profit-making ventures conducted upon property leased from a governmental entity a result which the Florida Constitution does not allow. ). Given the ten consistent holdings from this Court and the First District on the taxability of these interests on Santa Rosa Island, the Court should not accept this case. The question alleged to be of public importance has been subsumed by prior learned opinions of this Court, holding that the Florida Constitution mandates local government taxation at parity for these privately held interests. Respondents respectfully request that this matter be laid to rest without further review. CONCLUSION Because there is no basis for jurisdiction, this appeal should be dismissed and the application for discretionary review should be denied. 10 Respectfully submitted, Elliott Messer, Esq. Florida Bar No Thomas M. Findley, Esq. Florida Bar No Messer, Caparello & Self, P.A Centennial Place Tallahassee, Florida 32308

15 Telephone: (850) Roy Andrews, Esq. Florida Bar No Lindsay, Andrews & Leonard P.O. Box 586 Milton, Florida Telephone (850) Counsel for Gregory Brown By: CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing sent by U.S. Mail to Danny L. Kepner, Esq., Shell, Fleming, Davis & Menge, P.A., 226 South Palafox Street, 9th Floor, Pensacola, FL 32502, and Talbot D Alemberte, Esq. and Patsy Palmer, Esq., D Alemberte & Palmer PLLC, Post Office Box 10029, Tallahassee, FL , on this 19th day of August, Thomas M. Findley 11

16 CERTIFICATE OF COMPLIANCE I hereby certify that the font requirements of Rule 9.210(a), Florida Rules of Appellate Procedure, have been complied with in this Brief and the size and style of type used in this brief is Times New Roman 14 point. Thomas M. Findley 12