Florida Dept. of Revenue v. Howard, 1D02-3762.

• Decision Date: 26 November 2003
• Docket Number: No. 1D02-3762.,1D02-3762.
• Citation: 859 So.2d 619
• Parties: FLORIDA DEPARTMENT OF REVENUE, Appellant/Cross-Appellee, v. Joseph C. HOWARD and Joyce Forman; Joel W. Robbins, in his official capacity as the Property Appraiser of Miami-Dade County, Florida, and William Markham, in his official capacity as the Property Appraiser of Broward County, Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

859 So.2d 619

FLORIDA DEPARTMENT OF REVENUE, Appellant/Cross-Appellee, v. Joseph C. HOWARD and Joyce Forman; Joel W. Robbins, in his official capacity as the Property Appraiser of Miami-Dade County, Florida, and William Markham, in his official capacity as the Property Appraiser of Broward County, Appellees/Cross-Appellants.

No. 1D02-3762.

District Court of Appeal of Florida, First District.

November 26, 2003.

Charles J. Crist, Jr., Attorney General, and Nicholas Bykowsky, Assistant Attorney General, Tallahassee, for Appellant/Cross-Appellee.

Evan J. Langbein of Langbein & Langbein, P.A. Aventura, for Appellees/Cross-Appellants Joseph C. Howard and Joyce Foreman.

Robert A. Ginsburg, Miami-Dade County Attorney, and Thomas W. Logue, Assistant

County Attorney, Miami, for Appellee/Cross-Appellant Joel W. Robbins.

Gaylord A. Wood, Jr., of Law Office of Wood & Stuart, P.A., Ft. Lauderdale, for Appellee/Cross-Appellant William Markham.

ALLEN, J.

This case requires us to decide whether section 193.016, Florida Statutes, violates the uniform valuation requirement of article VII, section 4 of the Florida Constitution.¹ Although the trial court found only a portion of the statute unconstitutional, we conclude that the entire statute is facially unconstitutional.²

Subject to exceptions not relevant in this case, article VII, section 4 requires the legislature to enact a property valuation methodology for purposes of ad valorem taxation, and it directs that this methodology must be uniformly applicable to all types of property. Interlachen Lakes Estates, Inc. v. Snyder, 304 So.2d 433 (Fla. 1973). In furtherance of this constitutional directive, the legislature has specified uniform factors to be considered by property appraisers in arriving at just valuations for all types of property. See § 193.011, Fla. Stat.

When the legislature has departed from the constitutional directive by enacting statutes which provide alternative methodologies for valuation of specific classes of property, challenges to such statutes have been sustained. Snyder, supra (holding unconstitutional a statute providing a valuation methodology unique to unsold lots in platted subdivisions); Valencia Center, Inc. v. Bystrom, 543 So.2d 214 (Fla.1989)(holding unconstitutional a statute providing a valuation methodology unique to real property subject to specified pre-1965 lease agreements).

Section 193.016 suffers from the same constitutional infirmity as did the statutes involved in Snyder and Bystrom, because it prescribes a valuation methodology applicable to only a special class of tangible personal property. The statute provides:

193.016 Property appraiser's assessment; effect of determinations by value adjustment board.—If the property appraiser's assessment of the same items of tangible personal property in the previous year was adjusted by the value adjustment board and the decision of the board to reduce the assessment was not successfully appealed by the property appraiser, the property appraiser shall consider the reduced values determined by the value adjustment board in assessing those items of tangible personal property. If the property appraiser adjusts upward the reduced values previously determined by the value adjustment board, the property appraiser shall assert additional basic and underlying facts not properly considered by the value adjustment board as the basis for the increased valuation notwithstanding the prior adjustment by the board.

Although the statute specifies a valuation methodology applicable only to a limited class of tangible personal property, the trial court determined that only the second sentence of the statute violates article VII, section 4. As to the first sentence of the statute, the trial court reasoned:

The requirement that the property appraiser "shall consider" the reduced values of the value adjustment board ("VAB") does not usurp the discretion and power of the property appraiser to value property at just value. The property appraiser can consider and reject this additional factor in determining the just value of the property.

The trial court is correct that the first sentence of the statute merely requires the property appraiser to "consider" the prior year tangible personal property assessment reduction made by the value adjustment board. However, this mandated consideration is nevertheless an essential component of the valuation methodology for this special class of property.

As previously indicated, the legislature enacted section 193.011 in compliance with article VII, section 4, which requires the legislature to adopt a uniform methodology for valuation of all types of property for purposes of ad valorem taxation. Section 193.011 specifies a list of eight factors which "the property appraiser shall take into consideration" in arriving at a just valuation for all types of property (emphasis supplied). The legislature is authorized to add to or modify the list of factors to be considered by the property appraiser when determining valuations for all types of property. But, except in circumstances specified in article VII, section 4, and not present in this case, it may not provide additional or different factors which are applicable to only a limited class of property.³ Because this is the effect of both sentences of section 193.016, the statute violates article VII, section 4 of the state constitution and is facially unconstitutional in its entirety.

The order under review is accordingly affirmed in part and reversed in part.

DAVIS, J., concurs; BENTON, J., dissents with written opinion.

BENTON, J., dissenting.

"[C]onscious of our duty to interpret a legislative act so as to effect a constitutional result if it is possible to do so," Chatlos v. Overstreet, 124 So.2d 1, 2 (Fla.1960), I would construe section 193.016, Florida Statutes,⁴ as imposing process requirements that do not inherently—and ought not be interpreted to—interfere with the constitutional imperative of "just valuation of all property for ad valorem taxation." Art. VII, § 4, Fla. Const. On that basis, I would uphold the statute.

The first sentence in section 193.016, which requires only that the property appraiser "consider" what the valuation adjustment board did the year before (assuming no successful appeal), is not a directive to arrive at any assessment that does not represent just valuation. While the second sentence imposes more onerous requirements and presents a closer question,⁵ I would reject an interpretation of the second sentence, too, that would cabin exercise of the property appraiser's discretion in any way that would not leave the property appraiser free to arrive at just valuation in keeping with section 193.011, Florida Statutes.

The majority opinion relies on the decisions in Interlachen Lakes Estates, Inc. v. Snyder, 304 So.2d 433 (Fla.1973), and Valencia Center, Inc. v. Bystrom, 543 So.2d 214 (Fla.1989), cases in which our supreme court struck down statutes that dictated preferential assessments for certain owners of real estate. The court described the effect of the statute at issue in Interlachen as giving "a subdivision developer a tax break by treating his unsold lots as unplatted for tax valuation purposes until he sells sixty per cent of his lots, while all of the purchasers of his lots are not so favored." 304 So.2d at 435. The statute struck down in Valencia would have required the property appraiser to favor the owners of property subject to certain long-term, below-market leases, by prohibiting assessment on the basis of the highest and best use of the property. In both Interlachen and Valencia, the offending statutes would, under the statutorily prescribed circumstances, have required discriminatory assessment even of adjacent parcels of real estate, on the basis of factors other than the parcels' just value. Interlachen and Valencia are thus readily distinguishable from the present case.

Section 193.016 clearly does not, in the way the Interlachen and Valencia statutes did, "arbitrarily classify property for favored tax treatment." Valencia, 543 So.2d at 216. There is nothing arbitrary about the historic distinction between real property and tangible personalty. Far from being arbitrary, some classification of property is necessary for the administration of the tax laws. See, e.g., § 193.052(2), Fla. Stat. (2002) (requiring returns of tangible personal property but not, ordinarily, any return of "real property the ownership of which is reflected in instruments recorded in the public records of the county in which the property is located"). In legal contemplation, moreover, no "class" consisting of property (real, personal or...