Acad. for Positive Learning, Inc. v. Sch. Bd. of Palm Beach Cnty.

• Decision Date: 21 April 2021
• Docket Number: No. 4D19-2816,4D19-2816
• Citation: 315 So.3d 752 (Mem)
• Parties: ACADEMY FOR POSITIVE LEARNING, INC., a Florida not-for-profit corporation, Palm Beach Maritime Museum, Inc., a Florida not-for-profit corporation, d/b/a Palm Beach Maritime Academy, Marleny Olivo, an individual, and Pedro Olivo, an individual, Appellants, v. SCHOOL BOARD OF PALM BEACH COUNTY, Florida and G-Star School of the Arts, Inc., a Florida not-for-profit corporation, Appellees.
• Court: Florida District Court of Appeals

315 So.3d 752 (Mem)

ACADEMY FOR POSITIVE LEARNING, INC., a Florida not-for-profit corporation, Palm Beach Maritime Museum, Inc., a Florida not-for-profit corporation, d/b/a Palm Beach Maritime Academy, Marleny Olivo, an individual, and Pedro Olivo, an individual, Appellants,

v.SCHOOL BOARD OF PALM BEACH COUNTY, Florida and G-Star School of the Arts, Inc., a Florida not-for-profit corporation, Appellees.

No. 4D19-2816

District Court of Appeal of Florida, Fourth District.

[April 21, 2021]

Shawn A. Arnold and Braxton A. Padgett of The Arnold Law Firm, LLC, Jacksonville, for appellants.

Jon L. Mills of Boies Schiller Flexner LLP, Miami, and Stuart A. Singer and Sabria A. McElroy of Boies Schiller Flexner LLP, Fort Lauderdale, for appellee, School Board of Palm Beach County.

ON MOTION FOR REHEARING

Per Curiam.

Denied.

Levine, C.J., Damoorgian, Conner, Forst, Klingensmith, Kuntz, and Artau, JJ., concur.

Ciklin, J., dissents with opinion, in which WARNER, GROSS, and MAY, JJ., concur.

Gerber, J., recused after supplemental briefing.

Ciklin, J., dissenting from denial of rehearing.

I dissent from the majority's denial of the motion for rehearing in this matter for one primary reason: the refusal of the majority to recognize a controlling opinion from the Florida Supreme Court released the day after our issuance of the instant en banc opinion.

Directly on point, Emerson v. Hillsborough County , 312 So.3d 451 (Fla. Feb. 25, 2021), renders our majority opinion, as it relates to severability, flat-out erroneous. In a case arising out of Hillsborough County dealing with a voter-approved extra one percent sales tax for local transportation, the Florida Supreme Court declared the Hillsborough County referendum to be dead in its tracks because the referendum included a provision establishing an unlawful oversight board to distribute the money collected. The provision for the oversight board conflicted with an existing statute conferring such distribution authority to the county commission.

Most importantly, and apparently on all fours with the issue before us, the Florida Supreme Court held in part that the one percent tax could not be severed from the illegal provision implementing an oversight board, because the valid and invalid elements of the referendum were so inseparable that the court could not assume the voters would have approved the tax without the unlawful proviso:

Article 11 manifests a dual purpose to impose a surtax and to require that the proceeds of the surtax be distributed and used in accordance with the elaborate and detailed scheme established in the article. One element of that dual purpose cannot reasonably be divorced from the other. The unconstitutional provisions of article 11 therefore are not merely ancillary to the surtax but are integral to the overall purpose of the surtax initiative. The tax and the distribution scheme form an interlocking plan. They are functionally dependent. The purpose of the voters in levying a tax that is designed to be distributed and used in a specified manner—with elaborate provisions to implement and enforce that design—is thwarted if the tax is levied but the provisions approved by the voters governing the distribution and use of the tax are set aside. The voters supported taxing with controls on spending the proceeds of the tax. They should not be saddled with the taxing without having the benefit of the controls. Given the functional dependence of the valid and the invalid provisions, the "taint of [the] illegal provision[s] has infected the entire enactment." So the whole of article 11 is invalid.

Id. at *7 (citation omitted).

Likewise, in this case, the purpose of the voters in levying a tax that is designed to be distributed and used in a specified manner—here, for the benefit of noncharter public schools—is thwarted if the tax is levied but the provisions approved by the voters governing the distribution and use of the tax are set aside. Thus, under Emerson , the instant referendum's exclusion of charter schools from the tax revenues is not severable. The majority's contention that "the parties’ agreement as to severability" is controlling borders on farcical.

As in Emerson , "the intent of the electorate" must be the underlying polestar...