Advisory Opinion to the Governor, In re

• Decision Date: 12 May 1987
• Citation: 509 So.2d 292,12 Fla. L. Weekly 240
• Parties: 12 Fla. L. Weekly 240, 12 Fla. L. Weekly 375 In re ADVISORY OPINION TO THE GOVERNOR, Request of
• Court: Florida Supreme Court

Page 292

509 So.2d 292

12 Fla. L. Weekly 240, 12 Fla. L. Weekly 375

In re ADVISORY OPINION TO THE GOVERNOR, Request of May 12, 1987.

No. 70533.

Supreme Court of Florida.

July 14, 1987.

Charles R. Ranson of Ranson & Wiggins, Tallahassee, and Gregory L. Diskant of Patterson, Belknap, Webb & Tyler, New York City, for Association of Nat. Advertisers, Inc., American Ass'n of Advertising Agencies, Inc. and the American Advertising Federation.

Richard G. Garrett and Stuart H. Singer of Greenberg, Traurig, Askew, Hoffman, Lipoff, Rosen & Quentel, Miami, Paul Dodyk of Cravath, Swaine & Moore, New York City, Robert Saltzstein of Wyatt & Saltzstein, Washington, D.C., and Howell L. Ferguson, Tallahassee, for Magazine Publishers Ass'n and The Ass'n of Business Publishers.

Lloyd N. Cutler, Timothy B. Dyk and A. Douglas Melamed of Wilmer, Cutler & Pickering, Washington, D.C., and Donald M. Middlebrooks of Steel, Hector & Davis Miami, for Stephen A. Weiswasser, Sr. Vice President and General Counsel and Sam Antar, Capital Cities/ABC, Inc., New York City, George Vradenburg III, Vice President and General Counsel, CBS Inc., New York City, Corydon B. Dunham, Executive Vice President and General Counsel, Nat. Broadcasting Co., Inc., New York City, and Howard Monderer, Vice President, Law, Washington, Nat. Broadcasting Co., Inc., Washington, D.C.

Donald M. Middlebrooks, Thomas R. Julin, Samuel J. Dubbin, Norman Davis and Jason B. Meyer of Steel, Hector & Davis, Miami, for Florida Ass'n of Broadcasters, National Ass'n of Broadcasters, Post-Newsweek Stations, Florida, Inc., Scripps Howard Broadcasting Co., Susquehanna Radio Corp., WEAR-TV, Pensacola, Metropolitan Broadcasting Corp., Independent Florida Agrient and Fairbanks Communications, Inc.

Robert E. Meale of Baker & Hostetler, Orlando, for Baker & Hostetler.

Gerald B. Cope, Jr. and Laura Besvinick of Greer, Homer, Cope & Bonner, Miami, Richard J. Ovelmen, South Miami, and Dan Paul and Franklin G. Burt of Finley, Kumble, Wagner, Heine, Underberg, Manley, Meyerson & Casey, Miami, for Florida Press Association and Boca Raton News, Inc.

Dan Paul, Franklin G. Burt and John E. Kirkpatrick of Finley, Kumble, Wagner, Heine, Underberg, Manley, Meyerson & Casey, Miami, and George H. Freeman, New York City, for New York Times Co. Florida Newspapers.

Robert M. Ervin and Richard W. Ervin of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for Interested Parties.

David W. Johnson of Johnson & Crane, Miami, for Florida Motion Picture and Television Ass'n, Inc.

Parker D. Thomson and Cloyce L. Mangas, Jr. of Thomson, Zeder, Bohrer, Werth & Razook, Miami, Gerald B. Cope, Jr. and Laura Besvinick of Greer, Homer, Cope & Bonner, and Richard J. Ovelmen and Samuel A. Terilli, Office of General Counsel, Miami, for Miami Herald Pub. Co.

Julian Clarkson, Gregg D. Thomas, Steven L. Brannock, Laurel Lenfestey Helmers and Carol Jean LoCicero of Holland & Knight, Tampa, for The Tribune Co., The Florida Press Ass'n, Gannett Co., Inc., The Media General Broadcast Group, and The Florida Retail Federation.

Barry Richard and Lorence Jon Bielby of Roberts, Baggett, LaFace & Richard, Tallahassee, for The Florida Bar, Joseph J. Reiter, Renee Higgins, Victor Wade Howell and Brenda L. Smith.

Robert P. Smith, Jr. and Elizabeth C. Bowman of Hopping, Boyd, Green & Sams, Tallahassee, for Frank J. Carver, Joseph B. Carr, Mahlon Hendley and others.

Bruce Rogow and Steven Friedland, Ft. Lauderdale, and Milton Hirsch, Miami, for James M. Russ, Edward R. Shohat and Theodore Klein for Florida Criminal Defense Lawyers.

John W. Caven, Jr., Allan P. Clark and Steven R. Browning of Caven, Clark & Ray, Jacksonville, for Florida Associated General Contractors Council, Inc.

Stephen J. Wein and Kelli Hanley Crabb of Battaglia, Ross, Hastings, Dicus & Andrews, St. Petersburg, for North American Financial Services, Ltd.

Chris W. Altenbernd and Charles A. Wachter of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for Fiserv of Tampa, Inc.

Edith Broida, Miami, for interested party.

Ray Ferrero, Jr. and Wilton L. Strickland of Ferrero, Middlebrooks, Strickland & Fischer, Fort Lauderdale, and William G. Mateer, Lawrence J. Phalin, David L. Evans and Clay H. Coward of Mateer, Harbert & Bates, Orlando, for News and Sun-Sentinel Co., and Sentinel Communications Co.

Douglas W. Abruzzo, Tallahassee, for interested party.

Robert A. Altman, J. Griffin Lesher and James C. Duff of Clifford & Warnke, Washington, D.C., for Daniel F. O'Keefe, Jr. and Eve E. Bachrach, The Proprietary Ass'n, Inc. Joseph C. Spicola, Jr., General Counsel to the Governor, and Alan C. Sundberg, Sylvia H. Walbot and Cynthia S. Tunnicliff of Carlton, Fields, Ward, Emmanuel, Smith, Cutler & Kent, Tallahassee, for the Governor.

Talbot D'Alemberte, Joseph W. Jacobs and Adam J. Hirsch, Tallahassee, for the Legislature.

William Townsend, General Counsel and Jeffrey Kielbasa, Deputy General Counsel, Tallahassee, and Steven S. Rosenthal and Walter Hellerstein of Morrison & Foerster, Washington, D.C., for the Florida Dept. of Revenue.

Robert A. Butterworth, Atty. Gen., and Joseph C. Mellichamp, III, Kevin J. Odonnell and Eric J. Taylor, Asst. Attys. Gen., Tallahassee, for the Atty. Gen.

Jack M. Skelding, Jr. and Julius F. Parker, Jr. of Parker, Skelding, McVoy & Labasky, Tallahassee, for Florida Informanagement Services, Inc.

The Honorable Bob Martinez

Governor of Florida

The Capitol

Tallahassee, Florida 32301

Dear Governor Martinez:

We have the honor of acknowledging your communication of May 12, 1987, requesting our advice, pursuant to article IV, section 1(c) of the Florida Constitution and rule 9.500 of the Florida Rules of Appellate Procedure, as to the interpretation of a portion of the Constitution affecting your fiscal duties as Governor.

Omitting the formal parts, your letter reads as follows:

"Pursuant to Article IV, Section 1(c) of the Constitution of the State of Florida, your opinion is requested as to the interpretation of my executive duties and responsibilities as chief executive under Article VII, Section 1(d) and Article IV, Section 1(a), of the Constitution of the State of Florida.

"Article VII, Section 1(d) requires that 'provision shall be made by law for raising sufficient revenue to defray the expenses of the state for each fiscal period' and Article IV, Section 1(a) relates to my general obligations as chief executive, in particular, my duty to insure 'that the laws be faithfully executed.' In furtherance of those constitutional mandates, I am required to submit to the Legislature a recommended budget which contains sufficient revenues to meet my recommended appropriations, Chapter 216, Florida Statutes, and to amend my recommendations if it comes to my attention that revenue sources are insufficient to fund the appropriations, Section 216.168, Florida Statutes.

"Upon my election to office, I became acutely aware that in order to meet the requirements of this fast growing State, a new revenue source must be found to address pressing and compelling correctional, educational, health and other infrastructure needs. Pursuant to my constitutional and statutory authority and responsibilities, I, therefore, recommended to the Legislature a budget which contained projected revenues from a tax to be imposed on the sale or use of services in this State and recommended that such tax be implemented by the enactment of appropriate legislation. The Legislature responded by enacting into law Chapter 87-6, Laws of Florida (1987).

"Chapter 87-6 imposes a general tax on the sale or use of services consumed or enjoyed in the state. Services that are sold in the state but are consumed or enjoyed outside the state generally are not taxed under Chapter 87-6. A sale of service is deemed to occur in the state when more than 50 percent of the service is performed within the state based on costs of performance. A use of a service is deemed to occur in the state when the sale of the service takes place outside the state and the service is consumed or enjoyed within the state. The structure of the tax on the sale or use of services imposed by Chapter 87-6 thus follows the traditional pattern of Florida's sales and use taxes on tangible personal property, which imposes a tax on the use of property that is purchased outside the state but is subsequently used or consumed within the state.

"Moreover, the tax on the sale and use of services imposed by Chapter 87-6 in many cases is apportioned to the extent that the service is enjoyed (consumed) in the state. The preexisting provision of Chapter 212 [Florida Statute 212.06(7) ] that effectively provides a credit for sales and use taxes paid to other states has been extended by Chapter 87-6 to taxes imposed on services by other states. Hence, Florida's use tax on services will not apply insofar as the sale or use of such services in other states has lawfully been taxed by such other state.

"At the time I recommended a tax on the sale or use of services, there was no doubt in my mind that the tax was appropriate and valid. Indeed, I continue in that belief today. Since the enactment of Chapter 87-6, Laws of Florida, however, debate has raged as to the constitutional validity of the new tax. Numerous lawsuits attacking the statute have been filed or threatened.

"The challenges to the validity of Chapter 87-6 which have already been asserted or suggested can be categorized as follows:

(1) Due process--Whether a general tax on the sale or use of services consumed or enjoyed in the state, including legal services, impermissibly burdens the right to legal counsel and access to the courts in violation of the due process clauses of Article 1, Section 9 of the Florida Constitution and the 14th Amendment to the U.S. Constitution.

(2) Equal protection--Whether a general tax on the sale or use of services consumed or enjoyed in the state, which exempts some users of a service, denies equal protection...