State ex rel. Housing Authority of Plant City v. Kirk, 38907

• Citation: 231 So.2d 522
• Decision Date: 11 February 1970
• Docket Number: No. 38907,38907
• Parties: STATE of Florida ex rel. the HOUSING AUTHORITY OF PLANT CITY, Florida, a public body corporate and politic, Relator, v. Claude R. KIRK, Jr., Governor, Tom Adams, Secretary of State, Fred O. Dickinson, Jr., Comptroller, Broward Williams, Treasurer, Earl Faircloth, Attorney General, Doyle Conner, Commissioner or Agriculture, Floyd T. Christian, State Superintendent of Public Instruction, as and constituting the Department of Revenue of the State of Florida, and Fred O. Dickinson, Jr., as Comptroller of the State of Florida, Respondents.
• Court: United States State Supreme Court of Florida

Page 522

231 So.2d 522

STATE of Florida ex rel. the HOUSING AUTHORITY OF PLANT CITY, Florida, a public body corporate and politic, Relator, v. Claude R. KIRK, Jr., Governor, Tom Adams, Secretary of State, Fred O. Dickinson, Jr., Comptroller, Broward Williams, Treasurer, Earl Faircloth, Attorney General, Doyle Conner, Commissioner or Agriculture, Floyd T. Christian, State Superintendent of Public Instruction, as and constituting the Department of Revenue of the State of Florida, and Fred O. Dickinson, Jr., as Comptroller of the State of Florida, Respondents.

No. 38907.

Supreme Court of Florida.

Feb. 11, 1970.

Paul S. Buchman, Plant City, Fowler, White, Collins, Gillen, Humkey & Trenam and Marvin E. Barkin of Trenam, Simmons, Kemker, Scharf & Barkin, Tampa, for relator.

Earl Faircloth, Atty. Gen., Winifred L. Wentworth, Asst. Atty. Gen., and John D. Moriarty, Gen. Counsel for Dept. of Revenue, Tallahassee, for respondents.

DREW, Justice.

In Green v. Panama City Housing Authority ¹ the District Court of Appeal, Third District, held that the excise tax on rentals, imposed by the Florida Revenue Act of 1949, ² was inapplicable to Housing Authorities created and operating pursuant to the provisions of the Public Housing Authority Act. ³ On certiorari to this Court, conflicts in two former cases regarding the question of whether the tax was one imposed against the purchaser or seller were resolved by holding that the tax was one imposed on the seller ⁴ and, on the merits, affirming in all respects the conclusion of the district court that, under the provisions of both the Revenue Act, Supra, and the Public Housing Act, Supra, that the latter was exempt from the payment of such taxes. These cases were decided in 1959. And so it is that, since the passage of the Revenue Act of 1949, Supra, either by departmental interpretation (prior to 1959) or as a result of the decisions above referred to (since 1959) no Public Housing Authority in this state has been subjected to such tax. ⁵

In 1968, Section 212.02, Florida Statutes, F.S.A. was amended by Chapter 68--119, Florida Statutes. Subsection (9) of said Section 212.02, as so amended, with language added in 1968 underscored, states:

"Business' includes any activity engaged in by any person, or caused to be engaged in by him, with the object of gain, benefit, or advantage, either direct or indirect. The term 'business' shall not be construed in this chapter to include occasional or isolated sales or transactions involving tangible personal property by a person who does not hold himself out as engaged in business, but shall include Other charges For the sale or rental of tangible personal property, sales of or charges of admission, Communication services, all rentals and leases of living quarters, sleeping or housekeeping accommodations in hotels, apartment houses, rooming houses, tourist or trailer camps, And all rentals of commercial offices or buildings, all leases or rentals of parking lots or garages for motor vehicles, docking or storage spaces for boats in boat docks or marinas as defined in this chapter and made subject to a tax imposed by this chapter; provided that any such sales, charges, rentals, admissions, or other transactions made subject to the tax imposed by this chapter shall be collected by the state, county, municipality, any political subdivision, agency, bureau or department or other state or local governmental instrumentality in the same manner as other dealers, unless specifically exempted by this chapter.'

Pertinent sections of the Public Housing Act, referred to at length in both the opinion of the district court and of this Court in the Panama City cases, Supra, are identical today as when these cases were decided.

The State now contends that the underscored language quoted above redefines 'business' to such a degree as to supersede the Panama City cases and justify the ruling by the Department of Revenue that a tax on Public Housing Authorities is authorized and the imposition of such tax on the relator here, Housing Authority of Plant City, Florida.

Inherent in the argument of the Department of Revenue is that the exemption granted to the Housing Authority in Chapter 423 was repealed by implication by the 1968 amendment to the Revenue Act, thus rendering the Panama City cases and the ememption granted--now inoperable. We cannot say that the Department's argument is not persuasive, but, in a situation such as this--with such long standing recognition of such exemption by both the Legislature, this Court, the district court and the circuit court--we are not persuaded that such a catyclysmic result could be brought about by the application of the principle of implied repeal. Moreover, and while not necessarily controlling, the title to the Amendatory Act does not convey to our minds the slightest notice...