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1 STATE OF FLORIDA
CONSTITUTION REVISION COMMISSION
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COMMISSION MEETING
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DATE: February 11, 1998
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TIME: Commenced at 9:00 a.m.
11 Concluded at 5:00 p.m.
12 PLACE: The Senate Chamber
The Capitol
13 Tallahassee, Florida
14 REPORTED BY: KRISTEN L. BENTLEY
JULIE L. DOHERTY, RPR
15 MONA L. WHIDDON
Court Reporters
16 Division of Administrative Hearings
The DeSoto Building
17 1230 Apalachee Parkway
Tallahassee, Florida
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1 APPEARANCES
2 W. DEXTER DOUGLASS, CHAIRMAN
3 CARLOS ALFONSO (EXCUSED AT 4:30 P.M.)
CLARENCE E. ANTHONY
4 ANTONIO L. ARGIZ
JUDGE THOMAS H. BARKDULL, JR.
5 MARTHA WALTERS BARNETT
PAT BARTON
6 ROBERT M. BROCHIN
THE HONORABLE ROBERT A. BUTTERWORTH
7 KEN CONNOR
CHRIS CORR (EXCUSED)
8 SENATOR ANDER CRENSHAW
VALERIE EVANS
9 MARILYN EVANS-JONES
BARBARA WILLIAMS FORD-COATES
10 ELLEN CATSMAN FREIDIN
PAUL HAWKES
11 WILLIAM CLAY HENDERSON
THE HONORABLE TONI JENNINGS
12 THE HONORABLE GERALD KOGAN
DICK LANGLEY
13 JOHN F. LOWNDES
STANLEY MARSHALL (EXCUSED UNTIL 1:00 P.M.)
14 JACINTA MATHIS
JON LESTER MILLS
15 FRANK MORSANI
ROBERT LOWRY NABORS
16 CARLOS PLANAS (EXCUSED)
JUDITH BYRNE RILEY
17 KATHERINE FERNANDEZ RUNDLE
SENATOR JIM SCOTT
18 H. T. SMITH
ALAN C. SUNDBERG
19 JAMES HAROLD THOMPSON
PAUL WEST (EXCUSED)
20 JUDGE GERALD T. WETHERINGTON (ABSENT)
STEPHEN NEAL ZACK
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IRA H. LEESFIELD (ABSENT)
22 LYRA BLIZZARD LOGAN (ABSENT)
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1 PROCEEDINGS
2 (Quorum taken and recorded electronically.)
3 SECRETARY BLANTON: All commissioners indicate your
4 presence; all commissioners, indicate your presence.
5 Quorum call, quorum call.
6 (Pause.)
7 SECRETARY BLANTON: All commissioners indicate your
8 presence; all commissioners indicate your presence.
9 Quorum call, quorum call.
10 (Pause.)
11 SECRETARY BLANTON: All commissioners indicate your
12 presence; all commissioners indicate your presence.
13 Quorum present.
14 CHAIRMAN DOUGLASS: If you would come to order,
15 please. Everybody go to their desk, please. If everybody
16 would please rise for the morning prayer this morning
17 given by Commissioner Barbara Ford-Coates.
18 COMMISSIONER FORD-COATES: Let us pray. Gracious
19 God, we thank you for this day. We thank you for the
20 blessing of family and friends. We thank you for those
21 special friendships that we have formed in the time we
22 have spent on this commission.
23 Inspire us, we pray, this day with your gracious love
24 that we may agree and disagree with respect and
25 consideration. All this we pray in your holy name. Amen.
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1 CHAIRMAN DOUGLASS: Commissioner Lowndes, would you
2 lead us in the pledge of allegiance to the flag.
3 (Pledge of allegiance.)
4 CHAIRMAN DOUGLASS: All right. Commissioner
5 Barkdull.
6 COMMISSIONER BARKDULL: Mr. Chairman --
7 CHAIRMAN DOUGLASS: Let's have some order, please.
8 COMMISSIONER BARKDULL: Mr. Chairman, Members of the
9 Commission, you have on your desk a pink packet which will
10 follow the yellow one we were using yesterday. I believe
11 we completed the gold one. If we didn't, it can't be more
12 than one or two items there.
13 The proposed special order calendar is on your desk.
14 I would like to move two changes. One, on Page 5 you will
15 see a proposal placed on the calendar and it is No. 109.
16 I would move you that it be moved over to appear below
17 Proposal No. 41 on Page 4.
18 CHAIRMAN DOUGLASS: In front of it or behind it?
19 COMMISSIONER BARKDULL: Behind it.
20 CHAIRMAN DOUGLASS: Commissioner Scott?
21 COMMISSIONER SCOTT: Mr. Chairman, I have no idea
22 what this is or isn't and where it is going, but changes
23 of this nature where members have had on their desk the
24 order that we were going to take up or have been
25 available, I think we need to find out what it is and see
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1 what's being changed. So I would like to inquire of the
2 Rules Chairman what the proposal is.
3 CHAIRMAN DOUGLASS: Commissioner Barkdull.
4 COMMISSIONER BARKDULL: Commissioner Scott, it is on
5 Page 5. The only difference is instead of being listed on
6 the special order, it says, proposals placed on the
7 calendar.
8 CHAIRMAN DOUGLASS: Which he just moved it up one is
9 what he did.
10 COMMISSIONER HENDERSON: I'm confused, Mr. Chairman.
11 Mr. Chairman?
12 CHAIRMAN DOUGLASS: Commissioner Henderson.
13 COMMISSIONER HENDERSON: Inquiry of Commissioner
14 Barkdull and/or Commissioner Mills. I thought this was
15 withdrawn yesterday.
16 CHAIRMAN DOUGLASS: If it was, that would certainly
17 solve anybody's problem.
18 COMMISSIONER BARKDULL: If it was that would solve
19 the problem. I just looked at the calendar and picked it
20 up.
21 COMMISSIONER MILLS: Mr. Chairman?
22 CHAIRMAN DOUGLASS: Oh, I know what this was. This
23 is the one you tried to withdraw, it was a committee
24 substitute and I said it was withdrawn and now the
25 calendar shows it wasn't. It was withdrawn, as far as I'm
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1 concerned, and it is withdrawn. That solves that problem.
2 That's one out of the way anyway.
3 COMMISSIONER BARKDULL: Mr. Chairman, I have another
4 one which Senator Scott, Commissioner Scott will probably
5 need a copy of. This is Proposal No. 58 by Commissioner
6 Zack. What it relates to is an amendment to Section 2 of
7 Article I, the Declaration of Rights, and it provides, no
8 person shall be deprived of any right because of race,
9 religion and it adds age or physical handicap. That's
10 been dropped between the cracks between the Declaration of
11 Rights Committee and getting back to the office.
12 In order that we will have everything available to be
13 considered by the commission today and tomorrow, I'd like
14 to move it be placed at the bottom of the calendar.
15 CHAIRMAN DOUGLASS: I understand that you are moving
16 to just place it on the calendar; it won't come up today.
17 COMMISSIONER BARKDULL: I don't think it will.
18 CHAIRMAN DOUGLASS: Okay, probably won't. Everybody
19 has heard the motion is to place the Proposal No. 58,
20 which adds the word "age" in the Declaration of Rights
21 section dealing with individual rights. All in favor say
22 aye; opposed.
23 (Verbal vote taken.)
24 CHAIRMAN DOUGLASS: It is placed on the calendar.
25 COMMISSIONER BARKDULL: Thank you. That's all the
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1 comments I have, Mr. Chairman.
2 CHAIRMAN DOUGLASS: Commissioner Barkdull, would you
3 move that Proposal 109 be withdrawn from the committee --
4 58.
5 COMMISSIONER BARKDULL: I'll make a motion to
6 withdraw it from the committee and place it on the
7 calendar, if that will suit Madam Secretary.
8 CHAIRMAN DOUGLASS: Okay. That is done. Without
9 objection, that is done; it passes. Are you satisfied
10 Commissioner Mills has withdrawn 109, or do I need some
11 more on that?
12 (Off-the-record discussion.)
13 CHAIRMAN DOUGLASS: Okay. That's taken care of. All
14 right. We will proceed.
15 The first item on the calendar as recommended by the
16 committee is Proposal No. 2 on reconsideration by
17 Commissioner Sundberg. Would you read it, please?
18 READING CLERK: Proposal 2, a proposal to revise
19 Article I, Section 2, Florida Constitution; authorizing
20 governmental agencies to take actions to remedy the
21 effects of past discrimination in the areas of public
22 employment, public housing, public accommodations, public
23 education and the public procurement of goods and
24 services.
25 CHAIRMAN DOUGLASS: All right. Commissioner
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1 Barkdull.
2 COMMISSIONER BARKDULL: Mr. Chairman, Members of the
3 Commission, I move to reconsider this because I think
4 there is an impact -- this impacts No. 44 that's already
5 on reconsideration that was, or 144, that's already on
6 reconsideration. This was a proposal by Commissioner
7 Barnett related to arbitrary and discriminatory
8 sentencing. And I'm not sure how these two intertwine and
9 that was my purpose of the motion to reconsider. I'd like
10 to move the motion and leave it pending.
11 CHAIRMAN DOUGLASS: There is a motion we leave it
12 pending. Without objection it will be left pending. I
13 think also I believe Commissioner Connor wanted to be
14 heard on this and he hasn't arrived.
15 The next proposal on reconsideration is Proposal
16 No. 6 by the Committee on Finance and Taxation and
17 Commissioner Nabors. Commission Nabors, you are
18 recognized, I think, on this. Did you want to be
19 recognized on this? It is on reconsideration. It was
20 moved --
21 COMMISSIONER BARKDULL: It is my motion.
22 CHAIRMAN DOUGLASS: It is your motion, all right.
23 COMMISSIONER BARKDULL: And my purpose for making
24 this motion to reconsider, this is the Nabors proposal on
25 sunsetting the sales tax exemptions. If it passes, this
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1 will have some excess revenue. I thought that this should
2 be considered along with the Lottery enhancement proposal
3 because that proposal, if it passes, as I understand it,
4 creates a shortfall for the Legislature in finding
5 funding. And I thought that possibly the two of them
6 should travel together. We already have the sunset
7 provision reconsidered and that's the purpose of my motion
8 to reconsider. I move it and leave it pending.
9 COMMISSIONER NABORS: Could I speak to that?
10 CHAIRMAN DOUGLASS: All right. Commissioner Nabors.
11 COMMISSIONER NABORS: Yes, I would hope we wouldn't
12 do that, with all due respect, Commissioner Barkdull, for
13 this reason -- could you listen up? This passed by 20
14 votes, we debated it. Everybody has got another at least
15 one or two bites at the apple on this. The language in
16 the Proposal 6 that passed, under revenue neutrality, has
17 language in it which makes it basically no additional
18 dollars unless the Lottery proposal happens to be adopted
19 simultaneously.
20 So they are consistent. So I don't see any reason to
21 leave this thing in doubt as to its status until our next
22 vote. I would urge you not to reconsider it.
23 CHAIRMAN DOUGLASS: Commissioner Barkdull.
24 COMMISSIONER BARKDULL: The only reply to that I've
25 got is that I don't know whether we might not want to use
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1 some of the revenue that's going to be saved to make up
2 the shortfall.
3 CHAIRMAN DOUGLASS: All right. Now we were going to
4 leave this motion to reconsider pending. Do you have any
5 objection to that, Commissioner Nabors?
6 COMMISSIONER NABORS: Well I guess I'm a youngster to
7 this process. I'm not sure exactly what that means.
8 CHAIRMAN DOUGLASS: It means it will come up later in
9 the day.
10 COMMISSIONER NABORS: We have got a lot of work to
11 do, we have done a lot of debate. I see no reason to do
12 that. There is no -- any extra money -- there will be
13 extra money --
14 CHAIRMAN DOUGLASS: Wait a minute now. We are on
15 reconsideration. You don't argue the merits.
16 COMMISSIONER NABORS: I'm arguing in the sense I
17 don't see any reason to reconsider it because the stated
18 reason is incorporated within the bill itself. So there
19 is no reason to reconsider it.
20 CHAIRMAN DOUGLASS: Commissioner Smith, you have been
21 wanting to be recognized, so you are recognized.
22 COMMISSIONER SMITH: Thank you, Mr. Chairman. I'm
23 just rising for a point of clarification with regard to
24 Proposal 2 on affirmative action. I have no objection to
25 the request that has been made by Commissioner Barkdull; I
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1 just want to know procedurally, you know, is there a date
2 certain that it is coming up? Is it going to be tied to
3 Proposal 44? I'm just not clear.
4 CHAIRMAN DOUGLASS: My understanding is it is
5 temporarily passed, it could come up later in this
6 meeting, it could come up any time today. If it is not
7 taken up today, it would have to be carried over until
8 tomorrow. And so what he has done in effect is ask that
9 we not take this up at this time on the calendar. It is
10 not removed from the order, it is temporarily passed from
11 the order.
12 COMMISSIONER SMITH: Okay.
13 CHAIRMAN DOUGLASS: That's my understanding. Is that
14 what you intended?
15 COMMISSIONER BARKDULL: (Nods affirmatively.)
16 COMMISSIONER SMITH: Well is it any -- for instance,
17 with regard to setting the calendar today, Commissioner
18 Barkdull --
19 CHAIRMAN DOUGLASS: Beg your pardon?
20 COMMISSIONER SMITH: -- in terms of setting the
21 calendar today, Commissioner Barkdull asked that Proposal
22 58, which is the age provision, be placed at the end so we
23 know where it is. He asked that 41 be moved over. Where
24 is 2 now in the universe? It is somewhere in the stars,
25 help me find it. Tell me which star to look toward.
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1 You know, is it at the end, the middle or the
2 beginning?
3 CHAIRMAN DOUGLASS: Let me say what I think is
4 correct and has been confirmed by the Secretary. Matters
5 on reconsideration are continuing order. They can be
6 brought up at any time during the meeting today.
7 COMMISSIONER SMITH: I can even bring it up?
8 CHAIRMAN DOUGLASS: Yes, sir.
9 COMMISSIONER SMITH: Thank you, sir.
10 CHAIRMAN DOUGLASS: That was all you really needed to
11 know, wasn't it, Commissioner Smith?
12 (Laughter.)
13 CHAIRMAN DOUGLASS: You might want to pick your spot.
14 We are on the motion to reconsider, though, Proposal
15 No. 6, which is the one relating to the taxation article.
16 Would you read that, please?
17 READING CLERK: Committee Substitute for Proposal
18 No. 6, a proposal to create Article VII, Section 19,
19 Florida Constitution; providing limits on the adoption of
20 exemptions and exclusions from the general state sales
21 tax, reducing the rate of the general sales tax to
22 5 percent.
23 CHAIRMAN DOUGLASS: Now there has been a motion by
24 Commissioner Barkdull to temporarily pass this and put it
25 on the calendar in the same mode as the one Commissioner
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1 Smith talked about. I think we have to vote on that
2 motion since there has been an objection. We didn't do it
3 without objection. You did enter an objection, didn't
4 you, Mr. Nabors?
5 COMMISSIONER NABORS: Yes, sir.
6 CHAIRMAN DOUGLASS: What the motion is, Commissioner
7 Scott, is that we not take this up at this time, it is
8 left pending and on the calendar. It could be brought up
9 any time as a continuing order of business. That's
10 Commissioner Barkdull's motion that we are fixing to
11 consider. Do you want to speak to the motion?
12 COMMISSIONER SCOTT: Inquiry of the chair.
13 CHAIRMAN DOUGLASS: Okay.
14 COMMISSIONER SCOTT: What is the vote required to do
15 this?
16 (Off-the-record comment.)
17 CHAIRMAN DOUGLASS: She says all we have to do is TP
18 it.
19 COMMISSIONER SCOTT: It has not been officially
20 reconsidered though.
21 CHAIRMAN DOUGLASS: That's correct. All he is saying
22 is don't take it up right now.
23 COMMISSIONER SCOTT: Well the rule is that if it is
24 not -- either something done with it by the end of the
25 day, then it would be lost.
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1 CHAIRMAN DOUGLASS: Right, unless it is carried
2 forward, that's correct. It can be brought up at any
3 time, however. She said we don't have to vote on it, it
4 is just TP'd.
5 COMMISSIONER NABORS: Mr. Chairman, I'll withdraw my
6 objection. We will deal with it during the day.
7 CHAIRMAN DOUGLASS: It is TP'd and it's under the
8 conditions that has been again explained by Commissioner
9 Scott; that is, that it has to be brought up today, it can
10 be brought up as a continuing order of business. If it is
11 not brought up today at the end of the day, you need to
12 carry it forward to the next meeting.
13 Now we are on Proposal No. 144 by Commissioner
14 Barnett. Commissioner Barnett -- I mean, yeah.
15 COMMISSIONER BARNETT: Is this -- I'm not sure the
16 current status of this, Mr. Chairman. I know a motion was
17 made to reconsider yesterday. We decided not to take up
18 the motion to reconsider because the General was not here.
19 I'm happy to take it up now and move on, but he is not
20 here again. If he has issues I certainly want to hear
21 from him about these issues, but it is at the will of the
22 commission.
23 CHAIRMAN DOUGLASS: Commissioner Barkdull.
24 COMMISSIONER BARKDULL: It is the same as the other
25 two.
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1 CHAIRMAN DOUGLASS: It will be temporarily passed
2 under the same conditions as the other two. It is still
3 pending on the calendar under the same conditions as the
4 previous two on reconsideration. Now is there anything
5 further before we continue with the order?
6 COMMISSIONER SCOTT: I move we temporarily pass the
7 next one.
8 CHAIRMAN DOUGLASS: The next is Committee Substitute
9 for Proposal 172 and 162 by the Committee on Legislative
10 and Commissioners Thompson and Evans-Jones, with a pending
11 motion to reconsider by Commissioner Evans-Jones. Would
12 you read it, please?
13 READING CLERK: Committee Substitute for Proposals
14 172 and 162; a proposal to repeal Article III, Section 16,
15 Florida Constitution, relating to legislative
16 apportionment and create Article II, Section 10, Florida
17 Constitution; providing for a commission to establish
18 legislative and congressional districts; providing for the
19 appointment of members to the commission; requiring that
20 the Chief Justice of the Supreme Court fill certain
21 vacancies on the commission; requiring meetings and
22 records of the commission to be open to the public;
23 providing certain exceptions; requiring that the
24 commission files its final report with the Secretary of
25 State within a specified period.
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1 COMMISSIONER SCOTT: Mr. Chairman --
2 CHAIRMAN DOUGLASS: There is an amendment on the
3 table.
4 COMMISSIONER SCOTT: Well I was told that there is an
5 amendment, but it hasn't been distributed so I would move
6 that this be temporarily passed in the same manner as the
7 other two until we get a chance to see the amendment that
8 they are asking to be reconsidered.
9 CHAIRMAN DOUGLASS: The amendment will be
10 distributed, it will be temporarily passed, it is subject
11 to being brought up any time during the meeting today, as
12 are the others.
13 All right. We now go to the special order calendar
14 for today. Proposal 91 by Commissioner Hawkes was
15 disapproved by the Committee on Bonding and Investments,
16 it failed, motion to reconsider by Commissioner Barnett
17 was adopted, it was reconsidered and adopted in committee,
18 there was a motion to reconsider by Commissioner Mills,
19 adopted and consideration deferred until today.
20 All right. We are on rehearing on Commissioner
21 Hawkes' Proposal 91. Commissioner Hawkes, I haven't read
22 it yet, but --
23 COMMISSIONER HAWKES: Mr. Chairman, what I'd like to
24 do is just TP this. We have an understanding and it may
25 never come that it needs a vote or it may come that we
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1 want a vote. So as long as possible we would like to TP
2 it and if at the end some things happen, then we can bring
3 it up. But our understanding is that we are going to wait
4 and see what other things happen.
5 CHAIRMAN DOUGLASS: It is TP'd. We are really on a
6 roll this morning. Then we have Committee Substitute for
7 Proposals 138 and 89 by the Committee on Education and
8 Commissioners Nabors and Riley. And it was recommended as
9 a committee substitute, adopted as amended, with a pending
10 Amendment No. 1 as amended by Commissioners Riley,
11 Sundberg and Nabors. So it is on the calendar for
12 consideration with a pending Amendment No. 1. Am I right,
13 Commissioner Nabors?
14 COMMISSIONER NABORS: You are absolutely right,
15 Mr. Chairman. Unfortunately the amendment is not quite
16 being typed now, I hate to do this. But the good news is
17 that all of the debate we had yesterday between Mr. Mills,
18 I and others, we have worked out the language and we will
19 come with a product, hopefully, that can be voted up and
20 down based on the merits, not any detail of language. I
21 move to TP it until we get that amendment on the table.
22 CHAIRMAN DOUGLASS: All right. We will TP the
23 Constitution, the Secretary says. How long is it going to
24 take you to do that?
25 COMMISSIONER NABORS: They are doing it right now. I
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1 don't think it will take long.
2 CHAIRMAN DOUGLASS: Well I'd like to take that up
3 since it is pending.
4 COMMISSIONER NABORS: Well we are having to do a
5 substitute so it is going to take a while; I don't think
6 we can do that. I mean, it is not just a question of a
7 word here or there, it is being retyped.
8 CHAIRMAN DOUGLASS: All right. Then what we are
9 fixing to go into now will be the initiative process which
10 embraces several proposals. And I think it would be
11 appropriate, would it not, to take up the Select
12 Committee's report and then move to these proposals?
13 COMMISSIONER BARKDULL: I was going to yield to
14 Commissioner Freidin to submit the Select Committee report
15 in lieu of Proposal 132 or whichever one is on the
16 calendar.
17 CHAIRMAN DOUGLASS: Commissioner Freidin, you have
18 the floor, it has been yielded by Commissioner Barkdull,
19 the sponsor of 130. I didn't read 130, so let him read
20 it.
21 READING CLERK: Proposal 130, a proposal to revise
22 Article XI, Section 3, Florida Constitution; requiring an
23 initiative petition to be signed by a specified percentage
24 of the electors from each congressional district.
25 CHAIRMAN DOUGLASS: Commissioner Freidin, you are
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1 recognized. Could we have some order, please? We are now
2 finally not TPing something.
3 COMMISSIONER FREIDIN: Good morning, Commissioners.
4 Everybody is supposed to say, Good morning, Commissioner
5 Freidin.
6 CHAIRMAN DOUGLASS: We're glad you are here.
7 (Laughter.)
8 COMMISSIONER FREIDIN: This is a report of the Select
9 Committee on Initiatives and I want to give you a little
10 background, and then I'm going to describe for you the
11 proposal that we have come up with.
12 The Select Committee on Initiatives was formed at --
13 I guess, two sessions ago, two meetings ago. And referred
14 to this committee included, one, two, three, four, about
15 six different proposals that dealt with statutory
16 initiatives, and reforms to our present constitutional
17 initiative system in the Constitution at the present time.
18 The committee met several times and we considered all
19 of the proposals that were submitted to us; however, we
20 immediately made a decision not to consider, not to give
21 further consideration to the proposals that dealt with
22 statutory initiatives. So those will be coming up after,
23 for your consideration on their own and will not be the
24 subject of anything that the Select Committee is going to
25 report out on.
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1 I will say that from the beginning it was, and I
2 would invite any of the members of the Select Committee to
3 please stand and correct me if I am not properly stating
4 our position, but I think there was a very clear consensus
5 on this committee that we wanted to make the
6 constitutional initiative process more meaningful, more
7 easily understood by the citizens of our state.
8 We wanted to enhance participation by the citizens of
9 our state in the, in initiative reform and we wanted to
10 enhance, we wanted to come up with ways of enhancing the
11 understanding of the citizens of initiative reform
12 proposals that were put before them. There was a very
13 strong consensus among the members of this commission that
14 we did not want to make the process more difficult.
15 Now, I want to remind you-all that during the time of
16 our public hearings and certainly after the time of our
17 public hearings, we had received a lot of communication
18 from the public, from the media, and there was a lot of
19 comment on our initiative process.
20 I need not say any more than the two words "net ban"
21 To conjure up for all of you the comments that we heard,
22 most of which were very favorable towards the initiative
23 process, but some of which were from a group of people who
24 felt that their livelihoods had been taken away because it
25 was, in their opinion, too easy to get something on the
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1 ballot.
2 We also have heard, of course, from many people who
3 talked to us about how the Constitution in our state is
4 for sale because by spending a lot of money it seems that
5 it is not that hard to get an initiative passed and you
6 can make a change in the Constitution.
7 I think that the members of the Select Committee were
8 pretty unanimous in our feeling that that works both ways.
9 And that we want to preserve to the people of our state
10 the right to change our Constitution.
11 Now --
12 CHAIRMAN DOUGLASS: Commissioner Henderson.
13 COMMISSIONER HENDERSON: Yield for a question?
14 COMMISSIONER FREIDIN: I will.
15 COMMISSIONER HENDERSON: This whole section over
16 here, I don't know, we are totally confused as to what you
17 are talking about.
18 CHAIRMAN DOUGLASS: Let me see if I can bring it
19 to -- I was confused, too, but I think I got it straight
20 with the help of the Secretary and the Executive Director.
21 Yesterday this came up on the calendar and an
22 amendment was offered which was distributed by
23 Commissioner Freidin which was in effect the report and
24 recommendation of the Select Committee. It is on your
25 desk as an amendment to Proposal 130. I will ask that
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1 that be read again so that you will then be informed as
2 where we are because there is on the desk also an
3 amendment to that amendment which changes one word.
4 And I think it would be appropriate if we proceeded
5 on where we were when we quit, which was on Commissioner
6 Freidin's moved amendment to 130. And I would like to ask
7 the clerk to read the amendment.
8 COMMISSIONER HENDERSON: Mr. Chairman?
9 CHAIRMAN DOUGLASS: They are going to distribute them
10 again.
11 COMMISSIONER HENDERSON: None of us around here have
12 it and the question, if I can just ask this, is this a
13 complete substitute amendment for all of these proposals?
14 CHAIRMAN DOUGLASS: Well they proposed that, but
15 obviously we have to take up each proposal when we come to
16 it.
17 COMMISSIONER FREIDIN: I guess I was getting ahead of
18 myself. Let me see if I can back up a minute. There are
19 six proposals. The committee reviewed the six proposals,
20 the committee is not making any recommendations with
21 regard to statutory initiatives, but with regard to
22 constitutional initiatives, the committee came up with a
23 substitute proposal, which we are offering as an amendment
24 to Proposal No. 130.
25 That was distributed yesterday, it will be
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1 redistributed today, but I'm giving you a little
2 background so that you can understand where the committee
3 was coming from in terms of why we came up with this
4 proposal, with this recommendation, so that you can
5 understand what the thinking behind it was.
6 Some of the issues that came up that the committee
7 did feel could be improved in our initiative process
8 included the following, and I want to discuss each one of
9 them with you.
10 The first one, requiring statewide support for
11 initiative petitions. At the present time in order to get
12 an initiative petition on the ballot, the requirement is
13 that you have 8 percent of all the voters, and I hope I
14 say this right, all the voters who voted in the last
15 presidential election throughout the state, but the number
16 has to be percent of the number of electors who voted in
17 that election in the state and in half the congressional
18 districts.
19 In other words, you have to get your signatures from
20 at least half the congressional districts, you have to
21 have 8 percent of the people who voted in each of those
22 congressional districts, and you also have to have
23 8 percent of the voters in the state as a whole.
24 So you could get all of your signatures from half the
25 congressional districts, which means that you could draw a
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1 line from Tampa over to the east coast and go north or
2 south and you could have a North Florida constitutional
3 amendment, or you could have a South Florida
4 constitutional amendment. And you could actually get that
5 on the ballot without a single signature from the other
6 half of the state.
7 So the first thing that we dealt with was the
8 concept, which actually was the basis of Proposal 130 to
9 begin with, which was to require signatures not increasing
10 in any way the number, the total number of signatures that
11 are necessary, but to require signatures from all of the
12 23 congressional districts, rather than the current
13 requirement of half the congressional districts.
14 The second thing -- well the reason, before I go on
15 to that thing, let me see if I can explain to you the
16 reason that we thought that that was a good idea.
17 Obviously what we are trying to avoid is regionalism here.
18 What we are trying to avoid was what we heard when we went
19 to the panhandle that certain groups of people in the
20 panhandle had had their livelihoods devastated and they
21 felt like they really had been disenfranchised on this
22 issue.
23 If there had been signatures collected in that area,
24 if they had had more of an opportunity to participate, we
25 hope that perhaps they would have felt less
25
1 disenfranchised. Now the main concern of the Select
2 Committee was increasing public understanding on debate on
3 initiatives by creating, and we came up with the idea of
4 creating a system of public hearings.
5 The notion is that at a very early stage of the
6 proceeding when a proponent of a constitutional amendment
7 has collected a small fraction of the total signatures
8 that they are going to need, and in this proposal it says
9 that at the point where they have collected 8 percent of
10 the 8 percent, which means, for your information,
11 currently anybody trying to get an initiative petition on
12 the ballot has to have something like 435,000 signatures.
13 We are talking about less than 40,000 signatures, a
14 small percentage of what their total number is, when they
15 collect that, they file with the Secretary of State, they
16 say, We now qualify for a public hearing. And the
17 Secretary of State's office will arrange for public
18 hearings around the state for the purpose of giving a full
19 airing and full discussion to the issue that's being
20 proposed.
21 Now the thinking is twofold here; one, it gives the
22 proponent of the initiative, of the constitutional
23 amendment, the opportunity to have their issue heard in
24 the public, hopefully covered by the press, and if not
25 covered by the press, published. The results of the
26
1 hearing would be published in a way I'm going to describe
2 for you in a minute.
3 The other thing that it does is it gives the
4 proponents of an initiative a first airing, like a first
5 reading. And as you-all know, when we had first readings
6 of proposals here, we have often gone back to the drawing
7 board and said, Well, gee, after public discussion, after
8 we have discussed something, we realized that it really
9 isn't going to work the way we thought it would and we
10 want to go back and we want to get it fixed.
11 Well this gives the proponent an opportunity to go
12 back, get it fixed and start over without a tremendous
13 investment -- well, I guess tremendous investment is
14 probably a term of art here, but without a total
15 investment. In other words, they don't have to get all
16 their signatures and then figure out that their ballot
17 language really isn't good or that their proposal needs to
18 be tweaked a little bit. So the idea is to propose public
19 hearings, to allow public hearings after the collection of
20 a minimal number of signatures.
21 The other goal of the Select Committee was to expand
22 the amount of time to submit petitions to the Secretary of
23 State. In other words, to draw out the process, to
24 increase the length of time that the public has to become
25 informed and to increase the length of time that the
27
1 proponents have to get their message out to the public.
2 The purpose of this extension of time is simply to
3 provide the public with an opportunity to review and
4 understand the proposals before the election. And so at
5 present, under the present, under the present plan, a
6 proponent of an amendment can get it to the Secretary of
7 State up to 90 days before the election. And that is
8 generally, you know, right in the summer where people
9 aren't paying a lot of attention. And what this does is
10 it requires that proposals with all signatures be filed
11 six months before the election.
12 The committee addressed but declined to include in
13 this proposal increasing the voting requirement to
14 requiring the electorate to ratify. Right now the
15 electorate is required to ratify constitutional amendments
16 by a simple majority. It was proposed to the committee
17 that, and there is a proposal that you will consider later
18 to increase that to three-fifths. The committee declined
19 to deal with that and also declined to raise the signature
20 requirement. There was no interest on the part of the
21 Select Committee in raising the signature requirements.
22 I will be happy to answer any questions. I would
23 hope that you will read the amendment that I think is now
24 on everybody's desk. Is there anybody that doesn't have a
25 copy of the amendment?
28
1 CHAIRMAN DOUGLASS: There is an amendment to the
2 amendment on the desk, very short. Commissioner Rundle
3 has on the desk amendment number, an amendment to the
4 amendment which has been filed and distributed I think.
5 Would you read that, amendment to the Amendment No. 2.
6 READING CLERK: Amendment to the Amendment by
7 Commissioner Rundle, on Page 2, Lines 16 through 18,
8 delete those lines and insert, signed by a number of
9 electors in each of one-half of the congressional
10 districts of the state and of the state as a whole equal
11 to 8 percent of the votes cast.
12 CHAIRMAN DOUGLASS: What you did, as I understand it,
13 Commissioner Rundle, is just strike the word "or
14 amendment".
15 COMMISSIONER FREIDIN: If I might, and then I will
16 yield to Commissioner Rundle, we did have, I guess -- and
17 I apologize, Commissioner Rundle, because I think I should
18 have said that when I was talking about the committee, the
19 committee did vote to require that signatures --
20 CHAIRMAN DOUGLASS: Commissioner Freidin, wait just a
21 minute, we are going to have to get the caucuses to
22 adjourn and nobody seems to be listening to you. And I
23 would like for them to listen to you. This committee was
24 one of our best performing committees and I would, I think
25 all of us would be better served if we would hold off the
29
1 caucusing until this is at least presented. Now,
2 Commissioner Freidin.
3 COMMISSIONER FREIDIN: Thank you, Mr. Chairman.
4 The committee, the only split vote that the committee
5 had was on the question of whether to require the
6 signatures from all the congressional districts or
7 require, or maintain the present requirement where the
8 signatures only need to be collected from half the
9 congressional districts.
10 And Commissioner Rundle has moved an amendment to our
11 amendment which brings it back to half, which is really
12 the present constitutional requirement.
13 CHAIRMAN DOUGLASS: Commissioner Rundle, what you are
14 doing is bringing it back to the status quo where half of
15 the congressional districts could initiate it?
16 COMMISSIONER RUNDLE: Yes, sir. And my thought on
17 this is that I'm of the firm belief that it is difficult
18 enough for true citizens, grass roots citizen drives. And
19 we met with a number of people who have been through this
20 process, who were not a financed campaign, and I guess my
21 concern is that I believe well-financed campaigns will be
22 able to do that, whatever restrictions we put.
23 But I'm concerned that the true grass roots citizens
24 drive will not be able to overcome a lot of these hurdles.
25 So my thought was to leave it as the law is now with
30
1 respect to half of the congressional districts. I would
2 have entertained, and we did discuss, and it was a very
3 healthy discussion we had, to increase it to say, you
4 know, two-thirds. So going from half to 100 percent was a
5 middle ground. But as we tried to work through that, you
6 couldn't really do it numerically in a sound way.
7 So I would ask you just to really think about what
8 these citizens go through as it is now to get these
9 initiatives through. And I think that if we leave it at
10 half the congressional districts, we will help those
11 citizens that don't have the money, that aren't a
12 well-financed, well-campaigned organization, but who truly
13 want to have some access to their body of law which
14 represents them.
15 CHAIRMAN DOUGLASS: As I understand your amendment,
16 the committee recommended that it be statewide to meet the
17 objections that we heard in the public hearings and you
18 are offering an amendment which would in effect say, We
19 don't want to do that, we want to keep the status quo
20 insofar as the obtaining of the signatures.
21 COMMISSIONER RUNDLE: Correct. It just pertains to
22 that one section.
23 CHAIRMAN DOUGLASS: All right. It doesn't pertain to
24 the rest --
25 COMMISSIONER RUNDLE: Public hearings I think are a
31
1 wonderful idea. It educates the people and I think it
2 helps the true grass roots citizens get their message out.
3 So out of the three different areas, the one area that I
4 would suggest to this commission is that we leave it at
5 half the congressional seats, which is the law now, which
6 is what my amendment does.
7 CHAIRMAN DOUGLASS: All right. The first person up
8 was Commissioner Ford-Coates on the amendment to the
9 amendment and then Commissioner Smith is next.
10 COMMISSIONER FORD-COATES: Would Commissioner Rundle
11 yield for a question?
12 CHAIRMAN DOUGLASS: She yields.
13 COMMISSIONER FORD-COATES: And it actually may be
14 addressed to both Commissioner Rundle and Commissioner
15 Freidin.
16 If I recall correctly, one of the discussions or one
17 of the points brought up in the public hearings was the
18 difference between paid collectors of signatures versus
19 people that just sat out there because they believed
20 deeply in a subject. And I think this kind of goes to
21 that question. Was that discussed? Because I will vote
22 differently on this depending on whether or not that could
23 be a possibility of eliminating paid collectors.
24 COMMISSIONER RUNDLE: I'm glad that you asked that
25 question because we actually asked the citizens, we are
32
1 talking about the Stop Turning Out the Prisoners
2 Initiative that I had some relationship with because I saw
3 these people in different community groups.
4 And when we asked them, what would this do to you?
5 They said, You know, we are not paid, we didn't pay
6 anybody to get signatures, we didn't put paid collectors
7 out there to hand out these petitions and get them signed.
8 We just did it, we go to our Publix, we go to our local
9 supermarket, and to ask us to travel far to another
10 district on weekends and evenings was really an
11 inconvenience for them.
12 But it won't be for those that pay people to do that
13 because you would simply hire them to cover those other
14 congressional districts. So they really convinced me that
15 it was going to hurt the true citizens' access.
16 COMMISSIONER FORD-COATES: Was there any discussion
17 and is there any legal reason why you can't prohibit
18 paying people to collect signatures?
19 CHAIRMAN DOUGLASS: There is a constitutional reason,
20 I think.
21 COMMISSIONER FORD-COATES: That's what I'm looking
22 for because that was a proposal and that was a concern and
23 I didn't know --
24 COMMISSIONER FREIDIN: The First Amendment prohibits
25 that.
33
1 COMMISSIONER FORD-COATES: So you can't -- we can't
2 stop people from just paying anybody to collect
3 signatures. Okay.
4 CHAIRMAN DOUGLASS: Commissioner Ford-Coates, I think
5 maybe your question included whether the committee
6 considered it or not and Commissioner Freidin I think
7 would be the one to answer that.
8 COMMISSIONER FREIDIN: We did not have much
9 discussion of that because I think we were aware that the
10 Constitution prohibits it.
11 CHAIRMAN DOUGLASS: Commissioner Smith, you wanted to
12 be recognized, and then Commissioner Sundberg.
13 COMMISSIONER SMITH: Thank you, Mr. Chairman. My
14 question has been answered.
15 CHAIRMAN DOUGLASS: Commissioner Sundberg, you were
16 on the committee, were you not, sir?
17 COMMISSIONER SUNDBERG: I was, Mr. Chairman. I want
18 to speak against the amendment, as reluctant as I am when
19 it is offered by Commissioner Rundle and also -- and I
20 understand the problem.
21 I was convinced, however, if you will recall when we
22 met for public hearing in Fort Myers, one of the
23 representatives, Franklin, from that district, made a
24 presentation to us about this process.
25 And if you will recall, he brought a map of the state
34
1 of Florida that had the congressional districts outlined
2 on it. And he demonstrated that you could draw a line
3 from Tampa Bay due east to the Atlantic Ocean and more
4 than one-half of the congressional districts lie below
5 that line. He is the one that urged upon us that we make
6 the change that is incorporated in this proposal.
7 And that is to say, so that we prevent what are
8 regional special interest sort of initiative petitions,
9 that you should expand it so you have at least
10 demonstrated there is minimal support throughout the state
11 in each of the congressional districts for a proposal
12 before it is permitted to move forward.
13 I think that probably became manifest to us in the
14 continued presentations to us on the net ban issue, where
15 I think there were people from particular regions of the
16 state that felt there was no support whatsoever and that
17 they had foisted upon them something that had no support
18 whatsoever in their region. I'm not sure that's accurate.
19 But nonetheless, that was a perceived problem.
20 It is for that reason that I must vote against the
21 amendment because I think it does -- what we've heard is
22 this process has been abused, there has been too many of
23 these petitions. This doesn't make it harder and I think
24 as Commissioner Freidin has said, this Select Committee
25 did not set out to make it more difficult for the citizens
35
1 of this state to promote an initiative petition proposal.
2 We simply wanted to make it a more ventilated process.
3 And I think in addition, this at least indicates that
4 special regional interests cannot manipulate this process
5 if you require, and it's not a terribly onerous
6 requirement to require that they come from each of the
7 congressional districts. So I urge you to defeat the
8 amendment.
9 CHAIRMAN DOUGLASS: Commissioner Morsani.
10 COMMISSIONER MORSANI: With all due respect to the
11 committee and their work, I rise in serving in favor of
12 the amendment for the following: I'm very concerned, as
13 an example, the net ban. For those of you, and I don't
14 fish very much, but that change has been a dramatic change
15 on the industry, on a major industry in this state.
16 Granted, some were put out of jobs. But as all of us
17 know, some of us in the automobile business, we put the
18 buggy business out of jobs. And the buggy whip business
19 no longer exists in any great manner.
20 I think that if we, even though I am for change in
21 this initiative process, I don't think that this is the
22 right change. I support Commissioner Rundle's amendment
23 to leave it where it is. I understand about Mr. Franklin
24 and his presentation in Fort Myers. Yes, we can all make
25 that -- come to that conclusion; however, that does not
36
1 necessarily make it good public policy.
2 Yes, the net ban did affect some people and we all
3 regret that. We regret when people have to change their
4 jobs. But, in support of that, and I look at other
5 industries today. Fishing is an industry. Other
6 industries, we're talking people have two and three
7 careers today. That's going to be true in the fishing
8 industry or it could be true in the next generation of the
9 computer industry. Look what's happened in the telephonic
10 industry.
11 So the state is going to continue to grow. We know
12 by the year 2015 that there will be 20 million people.
13 This kind of policy is going to have a greater effect in
14 the future than it has had in the past. I actually must
15 tell you I'm going to vote against the whole thing the way
16 it is because I think stretching it out to 18 months, if
17 there is any process for initiative process also, what are
18 we doing for the tombstones? A seven year process, how
19 many tombstones are going to be on that initiative rather
20 than people that are alive today.
21 So I'm concerned about the whole thing, but I vote in
22 favor of the amendment. I think it's right to get it
23 there and I certainly would hope that we would accept the
24 amendment. I urge you to vote in favor of it.
25 CHAIRMAN DOUGLASS: All right. Commissioner Anthony
37
1 is next and then Commissioner Riley.
2 COMMISSIONER ANTHONY: Thank you, Mr. Chair. I, too,
3 rise in support of the amendment. I don't think that the
4 Select Committee's intent is to make it more difficult for
5 the citizenry to have a say in their Constitution, our
6 Constitution. But in fact, the amendment will make it
7 more difficult.
8 Will it make it more difficult for big money
9 industry, corporate groups to have access to the
10 Constitution? I say to you, no. It will not make it more
11 difficult for those organized corporate associations to
12 have input on and access of the Constitution. But it will
13 make it more difficult for the real citizen group that
14 wants to have a change and propose a change to the
15 Constitution, as Commissioner Morsani has already noted.
16 So I just urge you to support this amendment by
17 Commissioner Rundle.
18 CHAIRMAN DOUGLASS: Commissioner Riley.
19 COMMISSIONER RILEY: I have to rise against the
20 amendment. And I speak as a member of this commission
21 from the panhandle. And I can tell you that the idea that
22 the committee has come up with to require signatures from
23 all of the districts, it's much more equitable than the
24 way it is now.
25 And as we went around the state and as much as we got
38
1 tired of hearing about the net ban, I ask that you listen
2 to what they were saying, separate from the fact that the
3 fourth generation of persons who had been in the fishing
4 industry had lost their livelihood. And I would ask
5 Commissioner Morsani to come up to Bay County and Okaloosa
6 County and Walton County and start one of his many
7 businesses because there are still people up there who are
8 looking for work.
9 So I would ask you, remember what they said. And
10 what they said was, whether you agree with the initiative
11 or not, whether you agree with the amendment, what they
12 said was, We were taken for a ride. They didn't -- we
13 didn't have the opportunity to get our message out because
14 our numbers are not as great. We didn't have the input
15 that the other part of the state did. And I think what
16 the committee has come up with is they have said, Let
17 everybody in the state, everybody in the state has to have
18 the opportunity and must have some input into what's going
19 to be on the ballot.
20 So I strongly recommend that we do not vote for this
21 and defeat this amendment.
22 COMMISSIONER HENDERSON: Mr. Podium, Members of the
23 Commission --
24 (Laughter.)
25 COMMISSIONER HENDERSON: -- Ms. Riley, I'm not a
39
1 fourth generation fisherman from North Florida, I'm a
2 sixth generation fisherman from North Florida who was one
3 of the 72 percent of Floridians that supported the net
4 ban. And as somebody that's been involved in this
5 process, I've got to tell you that the committee's work
6 here will just -- I hear the intent, but it just slams the
7 door. You can throw it out.
8 I see Commissioner Kogan smiling over here because he
9 knows he won't be reviewing any of these for preballot
10 clearance anymore because they will never make it that
11 far. The Rundle amendment at least keeps a crack in the
12 door with the current way of 50 percent of the state.
13 You have got to remember, the Constitution is a
14 document that's approved by the majority of the people of
15 the state. Now it just so happens to be the majority of
16 people in the state live somewhere south of I-4. That is
17 a fact of life, that is how elections are run in this
18 state. So if you want to totally kill initiatives, defeat
19 the amendment. If you want to leave a crack in the door
20 for them, support it.
21 CHAIRMAN DOUGLASS: Commissioner Freidin. Look, I
22 haven't been absent from my chair nearly as much as you
23 have, Commissioner Henderson.
24 (Laughter.)
25 COMMISSIONER FREIDIN: Commissioners, with regard to
40
1 this amendment, you have a very simple choice. There are
2 two competing considerations here. One is, and they are
3 both really valid, worthwhile considerations.
4 One, the first consideration is do we want to make it
5 as easy as possible for a grass roots effort to get a
6 constitutional amendment on the ballot. The other one is,
7 when -- the other competing consideration is this is the
8 Constitution for all the people of Florida. And do we
9 want to encourage all the people of Florida to feel that
10 they have input into their Constitution and to feel that
11 they have been consulted with regard to their
12 Constitution.
13 This is a, in my opinion, a relatively minor
14 incursion into the ability of a grass roots effort to get
15 something on the ballot. We are not asking them by -- the
16 committee's proposal does not ask for additional
17 signatures. It's not one extra signature. What it is is
18 spreading it out throughout the state. All we're asking
19 for, all we're proposing is that it be spread out. That
20 means that you need to have some grass roots effort in
21 every congressional district.
22 And it doesn't mean -- in terms of paying for things
23 or anything like that, it really shouldn't cost much more.
24 It only means that you've got to engage people in
25 different geographical areas.
41
1 CHAIRMAN DOUGLASS: Anybody else want to be heard on
2 the amendment to the amendment by Commissioner Rundle? If
3 not, all those in favor of the amendment say aye; opposed.
4 (Verbal vote taken.)
5 CHAIRMAN DOUGLASS: Unlock the machine. Lock the
6 machine.
7 (Vote taken and recorded electronically.)
8 READING CLERK: Twelve yeas, 13 nays, Mr. Chairman.
9 CHAIRMAN DOUGLASS: I didn't vote, did I? I vote
10 yea. Does it fail? So my vote didn't count anyway,
11 assuming that would have been my vote. The reason I
12 didn't vote is because I couldn't make up my mind.
13 All right. Commissioner Freidin, you're now on the
14 amendment as amended which eliminates the requirement that
15 signatures come from all congressional districts and
16 restores it to eight; is that right?
17 COMMISSIONER FREIDIN: The reverse.
18 CHAIRMAN DOUGLASS: The reverse. I said it
19 eliminated that from your amendment. Your amendment
20 provided it went to all districts; didn't it?
21 COMMISSIONER FREIDIN: No. The committee's proposal
22 is that signatures must be collected in all congressional
23 districts. The amendment would have restored that to
24 half. So right now what we have, the amendment failed so
25 right now we're back to the committee proposal.
42
1 CHAIRMAN DOUGLASS: So we're on the committee
2 proposal. The amendment failed. I thought it passed.
3 Commissioner Freidin, you have the floor. It's right
4 where you started. I didn't mean to foul you up.
5 COMMISSIONER FREIDIN: Well other than reminding the
6 commissioners that, and I know you all have gotten the
7 same mail that I have received, we have gotten mail from
8 Tax Watch, the League of Women Voters, the Tallahassee
9 Democrat, the Florida Chamber of Commerce. We have
10 received an interesting proposal from F. Allen Boyd,
11 Congressman, State Representative Ralph Livingston, and
12 the Florida Council of 100 and all of them addressed some
13 of the issues that we have addressed in this proposal.
14 The proposal at -- I would be happy to entertain
15 questions with regard to the proposal or open it for
16 debate.
17 CHAIRMAN DOUGLASS: Commissioner Barnett.
18 COMMISSIONER BARNETT: A question.
19 CHAIRMAN DOUGLASS: She yields.
20 COMMISSIONER BARNETT: I know the proposal deals
21 with -- tries to deal with the implementation of the time
22 frame for implementation and makes some reference to --
23 upon being passed by the electorate or at such other time
24 that might be specified in the Constitution.
25 My issue about implementation is that if it went into
43
1 effect at the end of the '98 general election, the way the
2 public hearing schedule is set -- the requirement to get
3 the signatures 18 months before it would actually go on
4 the ballot would create a situation where very few people
5 now would even be able to get anything on the ballot in
6 2000 because they only would have -- the question is would
7 they have only from November of '98 until May of '99 to
8 get the required signatures in order to get in line to do
9 the public hearings and then to meet the rest of the time
10 frame?
11 And is that a concern -- is that accurate and is that
12 a concern?
13 COMMISSIONER FREIDIN: Gee, I wish you had been on
14 our committee. That is not something that we thought
15 about. That was not something we dealt with, and I think
16 that it is probably a valid concern. The only thing that
17 I would point out, and I think this is important,
18 particularly, Commissioner Morsani, because when you
19 mentioned it before, I think it's important for all of you
20 to understand that signatures currently have a life of
21 four years. And that's statutory.
22 And that they do continue to be valid for four years.
23 And there are ongoing efforts to collect signatures, but I
24 think that that's probably something that we could deal
25 with in Style and Drafting in terms of the implementation,
44
1 the effective date of it; is it not, Commissioner Mills?
2 Or should we amend it at the present time? I don't know.
3 CHAIRMAN DOUGLASS: Commissioner Kogan.
4 COMMISSIONER KOGAN: If I could comment on it. We
5 deal with this all the time. There are constantly
6 petitions out there, all the time, where signatures are
7 being gathered. At this very moment there are petitions
8 out there with signatures being gathered for the year
9 2000. So it's not necessary just to say it's limited to
10 that 18-month period. It could be something that's
11 underway now that they would just have to conform to the
12 new amendment. But these things are ongoing all the time.
13 COMMISSIONER FREIDIN: It may impact some initiative
14 petitions in the first cycle. We also, by the way, had
15 discussion about slowing it down even more and putting it
16 into a four-year cycle which the committee rejected. But
17 the object -- and with regard to the timing of it, the
18 object of stretching it out was simply to give more time
19 and this really, according to the people that we heard,
20 the grass roots people that we heard from, they like this
21 because they felt that in a lower budget campaign, the
22 more time they had, the more time they had to get their
23 message out.
24 Whereas in a short-term campaign if a well-financed
25 campaign is mounted, they can just blitz the TV waves for
45
1 a few weeks and get their message across and all it takes
2 is money. So the object here was to slow things down,
3 give the media, give the free media and give the people
4 more time to understand and discuss the issue.
5 CHAIRMAN DOUGLASS: Commissioner Anthony was up and
6 you're next, Commissioner Barkdull.
7 COMMISSIONER ANTHONY: Do you think -- is it a fact
8 that it will not make a difference for those who have
9 money when it comes to getting the petition in a shorter
10 period of time? Or did you hear from any consultants or
11 people who basically said that it is most often better to
12 get the signatures in the last two or three months because
13 it has that momentum that takes them right into the
14 election? Did you all hear of any comments that way?
15 COMMISSIONER FREIDIN: No. In fact, I tell you, the
16 work of this committee was very interesting because we
17 heard from consultants that represent, I would say,
18 moneyed interests and we also heard from people who are
19 mounting grass roots campaigns. And they all liked the
20 slowing down of the process. I think that they all felt
21 that it was a good idea to slow it down, to string it out.
22 And we did not hear what you're suggesting.
23 COMMISSIONER ANTHONY: When the whole entire proposal
24 comes up, I think many members did hear from the
25 consultants that that was a strategy that was used and
46
1 that was appropriately successful for them and like to
2 talk about that.
3 COMMISSIONER FREIDIN: You mean in terms of the
4 moneyed interests being able to do it all at the last
5 minute?
6 COMMISSIONER ANTHONY: Correct. And in fact this,
7 again, makes it more difficult for the grass roots people
8 when it comes to making the Constitution available to
9 them, in my mind.
10 COMMISSIONER FREIDIN: I'm not understanding. Is
11 it -- am I in order to ask Commissioner Anthony a
12 question? Because I know that we heard from some of the
13 same people that you heard from. But I'm not sure that
14 I'm understanding. You're saying -- is what you're
15 suggesting is that by stringing it out to six months
16 instead of 90 days that that makes it easier for moneyed
17 interests to get on the ballot? I mean, to get their
18 message across to the voters?
19 COMMISSIONER ANTHONY: You're looking at item D? Is
20 that what we're discussing?
21 COMMISSIONER FREIDIN: I'm responding to your
22 question but, yeah.
23 COMMISSIONER ANTHONY: No, my question to you was,
24 you think that this makes it better for the normal citizen
25 to string this out; is that correct?
47
1 COMMISSIONER FREIDIN: Actually we heard from both
2 grass roots amendment proposers and also from some
3 consultants that had represented moneyed interests who had
4 experience, I should say, with constitutional amendment
5 proposals. And both sides liked the idea of lengthening
6 the period of time.
7 They all thought that a better educated public would
8 be a better thing for us to have, and that the additional
9 time would give, they all thought that the additional time
10 would give them more time to educate the public on their
11 issues.
12 COMMISSIONER ANTHONY: We heard conflicting, in
13 regards to stretching that out, we did.
14 CHAIRMAN DOUGLASS: Commissioner Barkdull is next,
15 then Commissioner Smith.
16 COMMISSIONER BARKDULL: Would the Commissioner yield
17 for a question?
18 COMMISSIONER FREIDIN: Yes.
19 COMMISSIONER BARKDULL: Commissioner Freidin, it's
20 your intent, if this should pass, that it not impact any
21 ongoing initiative proceedings at the moment; isn't it?
22 COMMISSIONER FREIDIN: Well, I don't know how you
23 define "ongoing initiative proceedings" because as we
24 discussed earlier, it's my understanding that people can
25 be collecting signatures now and not planning on putting
48
1 their measure on the ballot until 2002 because there is a
2 four year life to these signatures. So I would think that
3 it probably would impact those.
4 If you're talking about petitions that have already
5 qualified for the ballot or ones that will qualify before
6 the effective date of this, of course not.
7 COMMISSIONER BARKDULL: Well, I'm concerned that -- I
8 generally support the committee's report, but I think that
9 possibly, and we ought to consider whether there ought to
10 be a schedule that indicated that this should not impact
11 any ongoing initiative drives because I think it should be
12 prospectively only. And I was trying to find out if that
13 was the sentiment of the committee. If it is not, we need
14 to know it.
15 COMMISSIONER FREIDIN: The answer to that is that the
16 committee really didn't discuss this issue and we would
17 welcome a friendly amendment.
18 COMMISSIONER BARKDULL: I think for the benefit of
19 Style and Drafting we could just indicate -- normally
20 Constitutional amendments only operate prospectively,
21 unless there is something to the contrary. And you state
22 I think --
23 COMMISSIONER FREIDIN: We would intend that this only
24 operate prospectively.
25 COMMISSIONER BARKDULL: Thank you.
49
1 CHAIRMAN DOUGLASS: Is that sufficient, Commissioner
2 Barkdull, for Style and Drafting to include that in the
3 schedule?
4 COMMISSIONER BARKDULL: I think it is.
5 CHAIRMAN DOUGLASS: I mean, it would be that way
6 without it; would it not?
7 COMMISSIONER BARKDULL: It would be that way without
8 it. But with some of the colloquy that went on, I was
9 afraid that there was some indication that it would impact
10 those that were ongoing at the moment. And that was my
11 purpose of standing up and asking the question, to try to
12 clarify it.
13 CHAIRMAN DOUGLASS: Commissioner Smith has the floor.
14 COMMISSIONER SMITH: Thank you, Mr. Chairman.
15 Commissioner Barkdull asked one of the two questions that
16 I was concerned about. And while I don't intend to go
17 back to the Rundle proposal because I'd be ruled out of
18 order, in the spirit of Commissioner Morsani's question,
19 because I do think, I do agree with the spirit of what's
20 trying to be done now, I just want to pose a question to
21 you.
22 We are moving forward in the spirit that we don't
23 want to make the process more difficult. If we're in the
24 public hearing process and a person who is engaged or
25 people who are engaged in this grass roots effort gets up
50
1 and asks the question, Commissioner Freidin -- let's say
2 it's on WFSU television -- Commissioner Freidin, if my
3 grass roots effort for this petition initiative,
4 Constitution petition initiative, gets signatures out of
5 22 out of 23 congressional districts and there is just one
6 little pocket we can't get it out of, does that mean, and
7 although we have 8 percent statewide, does that mean that
8 we don't have access to the ballot?
9 And the question then is, don't you think the people
10 are going to say we made it more difficult? I mean, I
11 just see that one little issue killing it; 22 out of 23,
12 60 percent, 75 percent. I really think we're going to
13 doom it if we require all 23 congressional districts. And
14 I just pose that to you because you're the floor manager
15 of this and I just want to make sure we think this thing
16 through before we take it forward.
17 COMMISSIONER FREIDIN: My response to that is that
18 was amply discussed in the committee. And what we're
19 talking -- you have to remember, Commissioners, that what
20 we're talking about here is 8 percent of 8 percent. We're
21 talking about a relatively small number for each
22 congressional district. We're not talking about a huge
23 number of signatures. And the concept is that if there
24 isn't support in that small number in an area for -- I
25 mean, even in the panhandle the net ban surely would have
51
1 been able to collect that number of signatures.
2 And I'm getting a nod back. I want the record to
3 reflect that Commissioner Riley is nodding in the back of
4 the room there. Those signatures would have been
5 available.
6 COMMISSIONER SMITH: My follow-up question then is on
7 Page 2 of your amendment, is it correct starting at Line
8 17, the congressional district of the state, equal to
9 8 percent of the votes cast in each of such district. I
10 don't read that as 8 percent of 8 percent, which would be
11 like 164, I read that as 8 percent. And my question is,
12 is that accurate?
13 COMMISSIONER FREIDIN: Well the 8 percent of
14 8 percent is the amount to get it to a public hearing, but
15 it is 8 percent total.
16 COMMISSIONER SMITH: Thank you, Commissioner Freidin.
17 CHAIRMAN DOUGLASS: All right. Anybody else have
18 anything on this amendment as amended? Commissioner
19 Connor.
20 COMMISSIONER CONNOR: Mr. Chairman, I rise to speak
21 in opposition to the proposal. I think Commissioner Smith
22 has put his finger on the pulse. In fact, we do
23 substantially raise the bar for the citizens of the state
24 of Florida to address matters on their own initiative in
25 the Constitution when we require that a minimal amount
52
1 be -- of signatures be obtained in 100 percent of all the
2 areas. That represents a significant change.
3 Now as far as the grass roots folks are involved,
4 that doesn't help them one wit, I assure you. In fact
5 that has a substantially chilling effect on a grass roots
6 group that's operating on a shoestring budget and getting
7 their matters before all the people of Florida.
8 And as far as its affect on real grass roots
9 initiatives that are launched by real people that have
10 genuine concerns about their state and who desire to be
11 real participants in the Democratic process, then I would
12 submit to you that this will substantially impair their
13 ability to have their voices heard in the constitutional
14 amendatory process.
15 Now the reality of it is that institutional
16 interests, special interests, associations with keen
17 political interests take a lot of comfort in that because
18 the thing that scares them to death more than anything
19 else is to give life to the notion that the political
20 power reposes in the people, plainly and simply. That's
21 why you've seen everybody from the Academy of Florida
22 Trial Lawyers to the Chamber of Commerce to medical
23 association groups unite behind making it more difficult
24 to cross the bar in this particular instance. I think
25 it's a grave mistake.
53
1 And I think frankly it is -- it will be viewed as
2 rather patrician for those of us who are privileged to
3 serve in this capacity, simply by virtue of our
4 appointment by someone else, not by virtue of any
5 election, not by virtue of any selection by the people in
6 this case to come in and say, We're going to make it more
7 difficult for all you folks out there in the real world to
8 do what we're going to be able to do with the snap of a
9 finger in a very real sense. They'll resent that and
10 frankly I think it's wrong. I think it's bad public
11 policy to do so.
12 Now however one may feel about the net ban amendment
13 and it's effect, I guarantee you in a very real sense it
14 will be harolded sort of with the battle cry, Remember the
15 Alamo.
16 So when you have a recalcitrant Legislature that
17 blocks up the process and creates a logjam and doesn't
18 give the people a real ability to express themselves or to
19 be heard, they can say, Remember what happened with the
20 net ban. If you don't give us this opportunity, we're
21 going to take things into our own hands and then it's
22 going to be a lot more difficult to make all the
23 adjustments and the fine-tuning and all of that that we
24 think may well be appropriate for something that's more
25 properly the subject of the legislative process.
54
1 I think we should leave this process alone. Yes,
2 it's been a rather scary process and people have felt
3 threatened. I as a trial lawyer have felt threatened by
4 some of the things that have come forward on the ballot.
5 Other folks who are involved in other professions and
6 groups have felt threatened by things that come to the
7 ballot.
8 But I say, Let's continue to repose our confidence in
9 the people. Let's let the Constitution mean what it says
10 when it says that all political power is inherent in the
11 people and let's trust the people to do the right thing.
12 Thank you.
13 CHAIRMAN DOUGLASS: Commissioner Rundle.
14 COMMISSIONER RUNDLE: I think it was yesterday or the
15 day before yesterday I told Commissioner Connor that I
16 really enjoyed listening to him, that I found him to be
17 very, very articulate and a very captivating speaker. And
18 he looked at me and he said, If that's true, then why
19 don't you ever vote with me? Well I'm going to vote with
20 you today, Commissioner Connor.
21 And I'm sorry to rise against this proposal because I
22 know how hard my good friends and colleagues,
23 Commissioners Sundberg and Freidin, worked on this. I
24 couldn't agree with Commissioner Connor more. I do
25 believe it's going to be denying access to the people who
55
1 really should have access. And those that have all the
2 money and the organizational skills, you could double
3 this, you could make it 20 percent and they are going to
4 be able to reach this bar. The grass roots citizens will
5 not.
6 And I want you also to think about what this ballot
7 is going to look like. We're taking away a lot of rights.
8 You know, they're not going to be able to elect their
9 judges anymore. We have Cabinet members we're saying
10 they're not going to be able to elect anymore,
11 Commissioner of Education, and now we're going to make it
12 even harder for you to access your document which
13 represents you. I really urge you to vote against this.
14 CHAIRMAN DOUGLASS: Commissioner Henderson was next.
15 You're next, Commissioner Riley.
16 COMMISSIONER HENDERSON: Thank you, Mr. Chairman. I
17 tried to stay in my seat through the course of this
18 debate.
19 CHAIRMAN DOUGLASS: Thank you.
20 COMMISSIONER HENDERSON: And Commissioner Connor, I'm
21 glad Commissioner Rundle said all the things she did
22 because I'm going to be brief because I can't add any more
23 to what you said, you were quite eloquent. And I'm
24 enjoying agreeing with you this time. We're going to work
25 together on this one.
56
1 And you know, this is also with trepidation that I
2 oppose the committee report here because I know that they
3 have worked hard on this and I know they have tried to
4 address some of the things that brought up concerns in
5 this proposal.
6 Nevertheless, I wanted the rest of the commission to
7 note something that the commission may not be aware of.
8 And that is that there was a General Provisions Committee
9 that heard all of the individual initiative proposals
10 concerning constitutional initiatives and statutory
11 initiatives. We heard from I think the entire lobbying
12 core on all of these issues and we voted that we didn't
13 want to change the system at all.
14 And it was after many hours of listening to all that
15 because we concluded a number of things that Commissioner
16 Connor pointed out. That the people who control the power
17 in this room, or this building, who think they control the
18 power in this building, maybe that's a good perception,
19 don't want these battles fought out in the street. So
20 that's why they don't want statutory initiatives. But
21 they also don't want to make any changes, they don't want
22 to get rid of the constitutional initiative because of the
23 same reason.
24 This is the way that we help protect the people's
25 voice in the Constitution. The proposal virtually slams
57
1 the door in it. I would say, if you're going to go with
2 this proposal, Style and Drafting should just eliminate
3 initiatives from the Constitution because it will never
4 happen, except for those groups or those industries,
5 perhaps, that are so well organized that they could
6 finance their way all the way to the very end.
7 I'm making a list here of the problems. Now
8 everybody has talked about the problem with initiatives,
9 they don't like the way we have junked up the
10 Constitution. But it occurs to me that in the course of
11 all of our deliberations we've had the opportunity here to
12 rethink or question what our citizens have done in the
13 Constitution out there in the initiative. And we've only
14 amended the Constitution ten times by the initiative
15 process, not 100, not 50, only ten times in this period of
16 time.
17 And I think -- and we have debated most of these
18 during the course of the time we were here. Yesterday we
19 dealt with the Save Our Homes proposal and we chose to
20 stick with what the public said. When we were here a few
21 weeks ago we debated the Eight Is Enough proposal and we
22 decided that the wisdom of the public worked pretty good
23 there and we didn't want to change that.
24 Early in the process after hearing from hundreds of
25 people we decided we didn't even want to consider changing
58
1 the net ban and made a vote on that that was a motion by
2 Commissioner Sundberg that we do nothing on that, to send
3 the message that we didn't want to do anything about that.
4 We had a lot of discussion about the Ethics
5 Commission and ethics in government, and sunshine in
6 government. Where did that come from? That came from the
7 people. It came from the initiative process. It
8 certainly did not come from these chambers or the chambers
9 down the hall.
10 We've had some discussion about the Lottery. We've
11 had lots of discussion about the Lottery. Not that the
12 Lottery was wrong, but that others have used it for their
13 own purposes, and that fraud word has creeped up a time or
14 two. Not that we wanted to change what the voters did,
15 but what the folks in this hall and down the hall have
16 done to the proposal.
17 I would suggest to you that even though we like to
18 grumble about how the system is broken, that the people of
19 this state have shown a pretty good collective sense of
20 wisdom through this process.
21 I can tell you that it is a process that is getting,
22 that the courts have made it more difficult to get
23 something through. I think they have shown wisdom in
24 trying to keep Florida from becoming another California.
25 So it is harder to get something through the court and
59
1 onto the ballot. This is a system that is not broken.
2 And in light of all the things that we're doing,
3 taking away, proposing to take away rights of the people
4 to participate in government, if you change this, this is
5 going to drive a stake through the heart of this process.
6 And I suggest to you if we make this change, this could be
7 one of the worst things we could do while we're here.
8 CHAIRMAN DOUGLASS: Commissioner Freidin to close --
9 wait a minute. Commissioner Riley, do you want to be
10 heard again?
11 COMMISSIONER RILEY: I would like to speak quickly in
12 favor of it, if I may.
13 We find ourselves with very strange company and odd
14 bedfellows. If anybody says this is a partisan group, as
15 politically savvy as we all are, our votes are all over
16 the board. So I find that it's very odd that I'm
17 disagreeing with Commissioner Rundle and Commissioner
18 Henderson.
19 However, I would certainly like to do that. We chose
20 not to touch the net ban issue. And in fact, one of the
21 speakers said to us, I know you're not going to do
22 anything about that. And God knows they were right, we
23 didn't want to touch that. But I think what we did here
24 certainly on that issue was, please look at the process
25 and I think it can be more equitable.
60
1 I don't think this drives a stake through the heart
2 of the petition process. I think this allows the entire
3 state to participate in the process and does not allow
4 certain areas to dictate what goes on the ballot but says,
5 let's have everybody's input. So with that in mind, I
6 would urge you to vote for it.
7 CHAIRMAN DOUGLASS: Now, Commissioner Freidin to
8 close.
9 COMMISSIONER FREIDIN: This proposal doesn't take
10 away anybody's rights. It doesn't even interfere with
11 anybody's rights. What it does is it enhances the rights
12 of all the citizens in the state of Florida to understand
13 and participate in their Constitution. The whole idea
14 here is to get people involved, have public hearings,
15 invite the public to come out, invite input into proposals
16 before they are written in stone, invite people to learn
17 about their government and to give comment about their
18 government.
19 You know, there is part of this -- maybe I didn't
20 describe it fully. But what this requires is that there
21 be public hearings and that they would be organized and
22 put on by the Secretary of State and that after the public
23 hearings, the Secretary of State would publish for the
24 voters a summary of the arguments that were made for and
25 against the proposals. Now where else are you going to
61
1 get that? And what in the world, how in the world does
2 that interfere with somebody's right to amend, have the
3 Constitution amended?
4 This is an enhancement. It is an educational tool.
5 The whole concept behind it is to enhance the ability of
6 the public to be involved. Now it is being discussed
7 here, it is being characterized here in a way that it is
8 totally not intended and in fact in a way that I don't
9 think it will have an impact.
10 In fact, the people that we presented it to, the
11 grass roots people we presented it to, liked it. They
12 said, Gee, this gives us a free publicity. This gives us
13 free access to the media and this gives us the opportunity
14 to have our voices heard without it costing us anything.
15 And something is mixed up here, we are confused.
16 And I urge you to read this carefully and maybe even
17 to, I would ask for a minute to allow the body to sit here
18 and read this proposal so we all are clear on what it is
19 that we are doing because this is getting very turned
20 around. Thank you.
21 CHAIRMAN DOUGLASS: All right. Commissioner Freidin,
22 thank you very much. I don't take that as a motion for a
23 moment of silent prayer or anything here, but if we're
24 going to start reading it, we may have some problems with
25 the Commissioners. We will now vote on the amendment.
62
1 Unlock the machine.
2 (Vote taken and recorded electronically.)
3 CHAIRMAN DOUGLASS: Lock the machine and announce the
4 vote.
5 READING CLERK: Ten yeas, 20 nays, Mr. Chairman.
6 CHAIRMAN DOUGLASS: By your vote, it fails.
7 Although I do want to thank the committee. You
8 worked very hard on this and if I had known you were going
9 to be roughed up like this, I probably wouldn't have done
10 it to you. Commissioner Sundberg told me that he couldn't
11 stand any more favors like this. I'll try not to do that
12 again.
13 We're still now on Proposal 130 by Commissioner
14 Barkdull.
15 COMMISSIONER BARKDULL: I move the proposal. We have
16 heard the debate on the issue and I just ask for a vote.
17 CHAIRMAN DOUGLASS: Would you read Proposal 130,
18 please. Pay attention. We're fixing to vote on Proposal
19 130.
20 READING CLERK: Proposal to revise Article XI,
21 Section 3, Florida Constitution; requiring an initiative
22 petition to be signed by a specified percentage of the
23 electors from each congressional district.
24 CHAIRMAN DOUGLASS: Commissioner Barkdull.
25 COMMISSIONER BARKDULL: This proposal is similar to
63
1 the amendment that was proposed to take out of the Select
2 Committee's report. The effect of this is to require that
3 the 8 percent be gathered from each of the congressional
4 districts rather than one-half. We had the debate on the
5 earlier amendment and I suggest the same vote this time.
6 CHAIRMAN DOUGLASS: All right. Unlock the machine
7 and vote.
8 (Vote taken and recorded electronically.)
9 CHAIRMAN DOUGLASS: Lock the machine.
10 READING CLERK: Eight yeas, 20 nays, Mr. Chairman.
11 CHAIRMAN DOUGLASS: Now we go to Proposal 65. Would
12 you read the proposal, please?
13 READING CLERK: Proposal 65, a proposal to create
14 Article III, Section 26, Florida Constitution; providing
15 for the revision or amendment of statutory law through the
16 initiative process.
17 CHAIRMAN DOUGLASS: By Commissioner Langley,
18 disapproved by the Committee on General Provisions.
19 Commissioner Langley.
20 COMMISSIONER LANGLEY: I move to withdraw it from
21 further consideration.
22 CHAIRMAN DOUGLASS: Without objection, it's
23 withdrawn. Commissioner Barkdull, wouldn't it be more
24 appropriate to go ahead with Proposal 72 which deals with
25 this subject than to go to --
64
1 COMMISSIONER BARKDULL: Yes, I move we temporarily
2 pass --
3 CHAIRMAN DOUGLASS: 69?
4 COMMISSIONER BARKDULL: -- 69 and we take up 72.
5 CHAIRMAN DOUGLASS: We'll take up 72 by Commissioner
6 Mills.
7 COMMISSIONER MILLS: Mr. Chairman, based on the fact
8 that the commission has decided to leave access the same
9 for the constitutional process, I would move to withdraw
10 this.
11 CHAIRMAN DOUGLASS: Without objection, 72 is
12 withdrawn.
13 Proposal 132 -- wait a minute, was there an
14 objection?
15 COMMISSIONER BARKDULL: I'm withdrawing 132.
16 CHAIRMAN DOUGLASS: All right. No. 132, without
17 objection, is withdrawn.
18 Proposal 150 by Commissioner Scott. Is that a
19 different subject?
20 COMMISSIONER SCOTT: Mr. Chairman, I would move to
21 temporarily pass this and let me explain. This was filed
22 just in case we needed it, like we needed that one the
23 other day for the Lieutenant Governor.
24 CHAIRMAN DOUGLASS: Without objection it's
25 temporarily passed.
65
1 COMMISSIONER BARKDULL: Revert to 69. It's going to
2 be withdrawn.
3 CHAIRMAN DOUGLASS: Correct? Sixty-nine has been
4 withdrawn? Okay. Without objection it's withdrawn. That
5 moves us to 160 by Commissioner Smith.
6 COMMISSIONER SMITH: Mr. Chairman, I move to withdraw
7 160.
8 CHAIRMAN DOUGLASS: 160 is withdrawn without
9 objection.
10 Number 164 by Commissioner Freidin.
11 COMMISSIONER FREIDIN: Based on the sentiments that
12 have been so clearly expressed here, I will withdraw that
13 proposal.
14 CHAIRMAN DOUGLASS: Now we go to Proposal 59 by
15 Commissioner Zack. Read the proposal.
16 READING CLERK: Proposal 59, a proposal to revise
17 Article X, Section 13, Florida Constitution; providing
18 limitations upon the amount of damages payable by the
19 state when a court finds the state liable; providing for a
20 bad-faith surcharge; placing a limit on attorney's fees.
21 CHAIRMAN DOUGLASS: Commissioner Zack, you are
22 recognized.
23 COMMISSIONER ZACK: We have a committee substitute
24 before the body.
25 CHAIRMAN DOUGLASS: It hasn't been put before the
66
1 body, no.
2 COMMISSIONER ZACK: Let me present it to --
3 CHAIRMAN DOUGLASS: It is an amendment to your --
4 COMMISSIONER ZACK: It is an amendment that is a
5 committee substitute which I accept as a friendly
6 amendment.
7 CHAIRMAN DOUGLASS: Offered as an amendment to
8 Proposal No. 164 -- excuse me, 59. We haven't read it.
9 Did we read it? Let's read it and then we will offer the
10 amendment. Read it, please.
11 READING CLERK: By Commissioners Lowndes, Zack --
12 CHAIRMAN DOUGLASS: No, no, read the proposal first
13 and then the amendment. All right. Read the amendment by
14 Commissioner Zack.
15 READING CLERK: By Commissioners Lowndes, Zack,
16 Morsani and Hawkes, on Page 1, Lines 11 through 28, strike
17 all of said lines and insert lengthy amendment.
18 CHAIRMAN DOUGLASS: We are now on the amendment which
19 in effect rewrites your proposal, does it not,
20 Commissioner Zack?
21 COMMISSIONER ZACK: It fine-tunes the proposal.
22 CHAIRMAN DOUGLASS: Would you like to take the floor
23 on the proposal or would you like one of the other
24 co-sponsors?
25 COMMISSIONER ZACK: I'm happy to go forward with the
67
1 amended proposal, though I'd like it read.
2 CHAIRMAN DOUGLASS: We did read it.
3 COMMISSIONER ZACK: Did you? Was that the amended
4 proposal?
5 CHAIRMAN DOUGLASS: We read the title to it, that's
6 all we read. Commissioner Morsani.
7 COMMISSIONER MORSANI: I need to ask a question.
8 Commissioner Zack, on our committee, the other piece of
9 that --
10 CHAIRMAN DOUGLASS: Let's all take our seats, please.
11 I think you are blocking the line of fire there.
12 COMMISSIONER MORSANI: I wonder if we shouldn't TP
13 this for about 15 minutes because they are working on the
14 other thing that we discussed yesterday evening.
15 COMMISSIONER ZACK: I have no problem with TPing it.
16 CHAIRMAN DOUGLASS: Without objection it will be TP'd
17 for 15 minutes or so. I guess there are three of them.
18 Do you want to TP all of them?
19 Proposal 46 by Commissioner Anthony is TP'd without
20 objection. Committee substitute for Proposal 177 is TP'd.
21 And now we are on Committee Substitute for Proposals 49,
22 103 and 185 by the Committee on Finance and Taxation and
23 Commissioners Anthony, Henderson and Mills, and as
24 recommended as a committee substitute by the Committee on
25 Finance and Taxation. Would you read it, please?
68
1 READING CLERK: Committee substitute for Proposals
2 49, 103 and 185; a proposal to revise Article VII, Section
3 3, Florida Constitution; revising the requirements for
4 exempting municipally-owned property; allowing the
5 Legislature to exempt from taxation property owned by a
6 governmental entity and used for airport, seaport, or
7 public purposes, as defined by law, and uses that are
8 incidental thereto.
9 CHAIRMAN DOUGLASS: We are going to take a five to
10 ten minute recess for everybody to get their itches taken
11 care of so we can be seated. We can't, we have no order
12 with everybody walking around the chamber and going from
13 desk to desk and the speakers are being not treated very
14 fairly.
15 We are going to take a recess and, please, everybody
16 do whatever it is you need to do in the way of walking
17 around so when we come back, we can do like Commissioner
18 Henderson, we can sit in our chair. We are in recess for
19 ten minutes, we will come back at 11:00 o'clock. We will
20 keep the chamber closed.
21 (Brief recess.)
22 CHAIRMAN DOUGLASS: Everybody come to order. I
23 really hope, Commissioners, that we can keep order. And
24 that's why I had this recess because I think we owe it to
25 the people to do what we have been doing the whole time,
69
1 which is being very attentive to what's going on and
2 listening to the speakers. So I'm going to give you
3 another few minutes until they finish what it is that
4 they're working on.
5 (Pause.)
6 CHAIRMAN DOUGLASS: Everybody come to order.
7 SECRETARY BLANTON: All commissioners indicate your
8 presence, all commissioners indicate your presence.
9 CHAIRMAN DOUGLASS: We have a quorum call. There are
10 a lot of people here that haven't come into the chamber.
11 I see one in the bubble. We are still missing some
12 members, but we'll start.
13 Commissioner Zack, you had offered an amendment and
14 were beginning to speak on it and now I understand that
15 you want to offer a substitute amendment.
16 COMMISSIONER ZACK: We withdrew that amendment and
17 offered a substitute.
18 CHAIRMAN DOUGLASS: So you now have a substitute
19 amendment which has not been read; is that right?
20 COMMISSIONER ZACK: That is correct.
21 CHAIRMAN DOUGLASS: Okay.
22 COMMISSIONER CONNOR: Point of order, Mr. Chairman?
23 CHAIRMAN DOUGLASS: All right. The proposal that we
24 are on is the Proposal No. 59 by Commissioner Zack and it
25 has been read and we now have an amendment, substitute
70
1 amendment being offered by Commissioner Zack which needs
2 to be read before we move to the next amendment.
3 COMMISSIONER CONNOR: Mr. Chairman, may I just
4 suggest --
5 CHAIRMAN DOUGLASS: I suggest first of all that we
6 try to sit down, please. All right, go ahead.
7 COMMISSIONER CONNOR: Mr. Chairman, I would just
8 suggest, and I believe it would be with Commissioner
9 Zack's consent, that you might allow me to set the stage,
10 as the chairman of the Select Committee, so that the body
11 would appreciate the recommendation that was made on this
12 proposal and fit it in the context of the various
13 proposals that came before our committee, if you deem that
14 to be appropriate.
15 COMMISSIONER ZACK: No objection whatsoever if it is
16 appropriate.
17 CHAIRMAN DOUGLASS: First of all we have to read this
18 amendment to technically make it before the body. Could
19 you do that, please?
20 (Off-the-record comment.)
21 CHAIRMAN DOUGLASS: We are on 59, that's what
22 everybody was caucusing on, I understood, 59 and we are
23 going to read the substitute amendment, after which
24 Commissioner Zack has yielded to Commissioner Connor to
25 present further items. Proceed. Read the amendment.
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1 READING CLERK: Substitute amendment by Commissioners
2 Lowndes, Zack, Morsani and Hawkes, on Page 1, Lines 11
3 through 28, strike all of said lines and insert, Section
4 1, Section 13 of Article X of the Florida Constitution is
5 revised by amending that Section to read, Article X,
6 miscellaneous; Section 13, suits against the state,
7 provision may be made by general law for bringing suit
8 against the state, its political subdivisions, agencies,
9 districts and municipalities as to all liabilities now
10 existing or hereafter originating provided in such a suit
11 a person may recover damages up to a maximum amount of
12 $200,000 plus costs, other than attorney's fees incurred
13 in the suit, unless such an amount is increased by general
14 law.
15 In any event, the maximum amount of damages shall be
16 increased each year by the same percentage as the
17 percentage increase in the Consumer Price Index or a
18 successor index published by the federal government.
19 CHAIRMAN DOUGLASS: All right. Commissioner Zack
20 yields to Commissioner Connor.
21 COMMISSIONER CONNOR: Thank you, Mr. Chairman. Your
22 Select Committee on Sovereign Immunity met on three
23 occasions and considered the Zack proposal, which was
24 Proposal 59; the Freidin proposal, Proposal No. 77; and
25 the Anthony proposal, Proposal No. 46. The only proposal
72
1 that emerged from that committee with a favorable
2 recommendation was the committee substitute which is now,
3 which Mr. Zack now will seek to amend. But it did receive
4 a favorable report from the committee for this body.
5 Mr. Chairman, we also did have -- consider
6 recommendations that a court of claims be established by
7 the Legislature.
8 CHAIRMAN DOUGLASS: That's on the desk now as an
9 amendment by Commissioners Lowndes and Morsani.
10 COMMISSIONER CONNOR: Yes, sir. And did not have the
11 opportunity, we considered that conceptually, did not have
12 the opportunity to consider a full-blown amendment, but I
13 understood that it was going to be submitted for our
14 consideration this morning.
15 CHAIRMAN DOUGLASS: There has been no recommendation
16 then on that because it hasn't been considered.
17 COMMISSIONER CONNOR: Yes, sir, that's correct. Only
18 the Zack Proposal 59, which emerged as a committee
19 substitute, had a favorable recommendation.
20 CHAIRMAN DOUGLASS: If I'm right, I'll ask the
21 Secretary, Commissioners Lowndes and Morsani have offered
22 an amendment which would be a substitute amendment?
23 (Off-the-record comment.)
24 CHAIRMAN DOUGLASS: So what we will do is we will
25 take Commissioners Lowndes' and Morsani's amendment to the
73
1 amendment, which has not been read, and we will have that
2 read. Now this is the amendment to the amendment. If you
3 pass this, does the other one remain intact?
4 (Off-the-record comment.)
5 CHAIRMAN DOUGLASS: That's my understanding. It is
6 not a substitute, it is an amendment to the substitute
7 amendment. Very well. Now we will read the amendment to
8 the substitute amendment.
9 READING CLERK: Amendment to the amendment, by
10 Commissioners Lowndes and Morsani, on Page 1, Line 14,
11 after the period insert lengthy amendment.
12 CHAIRMAN DOUGLASS: Pay attention now. Is that all
13 it says? I'll let Commissioners Lowndes and Morsani
14 explain the amendment to the amendment. Commissioner
15 Lowndes, you are recognized on the amendment to the
16 amendment.
17 COMMISSIONER LOWNDES: Thank you, Mr. Chairman. As
18 Commissioner Connor indicated, we had a presentation last
19 night at a quarter to seven which dealt with the
20 possibility of replacing the claims bill procedure that's
21 now in the Legislature with a judicial procedure which was
22 similar to, if not identical to, the federal tort claims
23 act. And that's what this amendment proposes to do.
24 From the testimony we have heard from almost
25 everybody, the claims bill procedure is a very difficult
74
1 and awkward procedure. As everybody knows, the reason for
2 the claims bill procedure is for those matters which
3 generally exceed the caps that the Legislature has put on
4 sovereign immunity.
5 The provision in the amendment here would establish a
6 judicial procedure for dealing with those matters which
7 are in excess of the caps and it would eliminate
8 presumably or give the Legislature the opportunity to
9 eliminate the claims bill procedure.
10 CHAIRMAN DOUGLASS: If I understand -- let me see if
11 I understand it, maybe it will help us in this. What you
12 have done is allow the amendments cap proposal to remain
13 intact insofar as sovereign immunity as proposed by
14 Commissioner Zack's amendment. That was the committee
15 substitute. That would limit damages to $200,000 with the
16 CPI applying.
17 COMMISSIONER LOWNDES: That's right.
18 CHAIRMAN DOUGLASS: Then you have added to that, when
19 you go over that, rather than have the claims bill
20 procedure which has received universal attention, that you
21 would establish for the claims that go above that amount
22 this court of limited jurisdiction called a court of
23 claims which would replace the claims bill procedure.
24 COMMISSIONER LOWNDES: That's right. And presumably
25 it is similar to if not identical to the way the federal
75
1 government deals with the tort claim.
2 CHAIRMAN DOUGLASS: Commissioner Morsani is also a
3 sponsor of that. Did you have anything further,
4 Commissioner Lowndes?
5 COMMISSIONER LOWNDES: No, sir.
6 CHAIRMAN DOUGLASS: Commissioner Morsani.
7 COMMISSIONER MORSANI: Our intent here as we have
8 heard through all of our 13 public hearings is the real
9 concern is the catastrophic arena. And generally it is
10 those folks that don't have the financial resources to go
11 through the process and the delays and so on and so forth
12 that have been prevalent in the other side of that
13 equation.
14 So this is an effort to address that through the
15 judicial process and with minimal impact, we think, on the
16 court. And that's the reason why it is culled out the way
17 it is. It was very difficult and we are concerned about,
18 I understand there is some shortcomings of course with
19 anything you propose, but we really felt that the
20 catastrophic arena needed to be addressed and this was a
21 better way of addressing it than in the claims bill
22 process which has been a long, drawn out process.
23 We know there can be some abuses, but we felt like to
24 do something for the citizenry, that this was the best
25 alternative that we could think of.
76
1 CHAIRMAN DOUGLASS: All right, Commissioner Brochin.
2 COMMISSIONER BROCHIN: I have a question.
3 CHAIRMAN DOUGLASS: Yes.
4 COMMISSIONER BROCHIN: As I understand the proposal,
5 this switches the claims process from the legislative
6 branch to the judicial branch essentially. I'd like to --
7 CHAIRMAN DOUGLASS: I think it would still leave
8 intact claims that didn't involve torts.
9 COMMISSIONER BROCHIN: But claims exceeding the caps
10 would be --
11 CHAIRMAN DOUGLASS: That's correct.
12 COMMISSIONER BROCHIN: Instead of going through a
13 claims process in the legislative branch it goes through
14 essentially a claims process in the judicial branch; is
15 that what this proposal does?
16 Okay. If that's what it does, I'd like to know what
17 standards, first of all, the legislative branch used in
18 deciding whether the immunity cap should be lifted and the
19 claims paid and then, under this proposal, what standards
20 are the judicial branch going to use to decide whether or
21 not the cap should be removed and the payments paid.
22 I think it is a good idea, but I just think it is
23 important to understand the standards that we are going to
24 ask another branch of government to make a decision on
25 vis-a-vis why to remove caps on particular claims bills.
77
1 COMMISSIONER MORSANI: I suppose the legal minds will
2 have to answer that, sir. I can't answer that,
3 Mr. Brochin. However, it was our intent and the genesis
4 is that the Legislature would set those standards and then
5 tell the court. That's where Frank Morsani is coming
6 from. I don't understand quite your terms that you
7 explained so I'll let the legal minds address that
8 further.
9 CHAIRMAN DOUGLASS: Commissioner Nabors, do you want
10 to answer that?
11 COMMISSIONER NABORS: No, no, I have a question,
12 maybe to Mr. Lowndes or to someone else who -- I want to
13 make sure I understand this proposal. As I understand
14 currently the process for claims bills, and I'm not a tort
15 lawyer, but I think I understand it.
16 Generally the claims bill process currently is
17 triggered after judgment. And then the Legislature in its
18 committees has another hearing in which they make a
19 determination to make a recommendation to the Legislature
20 of their own, which they have the knowledge of what the
21 jury trial awarded. But it is -- it doesn't really,
22 claims bills aren't triggered, as I understand it, until
23 the jury has had its say.
24 Assuming that's true, the way I read this, I'm not
25 sure whether it is good or bad, but the way I read this is
78
1 this court would, there would be a right to access to this
2 court upon petition of the petitioner and petitioner's
3 counsel if the claim exceeds the limits and the jury trial
4 would not have occurred; is that correct?
5 COMMISSIONER LOWNDES: That's right. I'm not sure
6 that you are right about what the claims bills are about
7 because a lot of them are not about judgments at all, I
8 think. A lot of them are for different reasons where like
9 people who have been wrongfully imprisoned and that sort
10 of thing.
11 COMMISSIONER NABORS: Well, I mean in terms of tort
12 liability. This is not an unfriendly question, I am just
13 trying to understand. I think on tort liability, I think
14 the rules are is there is no -- the claims bill process
15 isn't resolved until the jury comes back with an award in
16 excess of limits.
17 COMMISSIONER LOWNDES: That's right. And apparently
18 the Legislature then decides how much the government who
19 is being sued should pay.
20 COMMISSIONER NABORS: What bothers me about this is
21 that we don't really preserve constitutionally any power
22 of the Legislature to establish some limits on the claims
23 that can be -- I mean, the problem is we have a pretrial
24 process, one. And secondly is that I have never seen a
25 plaintiff's lawyer who didn't think he had a big claim,
79
1 two.
2 And so I'm worried about, we have no oversight of the
3 jury having verified that plaintiff's lawyer's grandeur
4 view of what his claim is and maybe we ought to have at
5 least, if we do have some limits with the Legislature to
6 set some limits if we are talking about catastrophic
7 claim, that this would only be claims over a certain
8 amount or something.
9 That's what bothers me about this. I'm afraid you
10 are creating a process where almost everybody who has a
11 claim will always say it is over the limits and will go to
12 this process.
13 COMMISSIONER LOWNDES: Well if you read the schedule
14 there is some, I think, provision for penalties if that's
15 the case. But that was the intent, the way it was
16 explained to us. But if you read the letters that you get
17 from cities and other people who are benefiting from
18 sovereign immunity, what they all say is they should be
19 saved from runaway juries.
20 COMMISSIONER MORSANI: If I might, Mr. Nabors, one of
21 the things that we did discover in the hearings, even at
22 the cap of $100,000, because that's all they had to work
23 with was $100,000, but 75 to 85 percent of all claims
24 today are being negotiated and settled within that cap,
25 obviously.
80
1 So even raising it -- to answer your question, well,
2 no, that's a poor choice of words. To address your
3 concern, we recognize and my concern as an employer, as a
4 citizen is exactly what you said, with the trial lawyers
5 all saying that every claim is going to be over $200,000.
6 That's a question in my mind, I have got to be very honest
7 with you. And I wasn't very happy about making this
8 recommendation.
9 Because it scares me what some trial lawyers might
10 do, and they are sitting in this room. And I understand
11 that, they are all friends of mine. But by the same
12 token, I don't think we are treating our people right and
13 therein lies my, why I think that this makes sense and
14 that we have, and hopefully that the judge that is
15 appointed by the various circuits will have the fortitude
16 to tell them that they are unreasonable.
17 Now I can't control that, but we have got to have a
18 different system I think than what we currently have.
19 COMMISSIONER NABORS: Mr. Chairman --
20 CHAIRMAN DOUGLASS: Still a question?
21 COMMISSIONER NABORS: Yeah, I guess. Would you
22 believe, Mr. Morsani, that a lot of local governments are
23 nervous when the claims bill is filed too because you have
24 a situation where political people can enter judgments in
25 someone else's budget and pocketbook. So it is not -- the
81
1 claims bill isn't always something that's a comfort level
2 for government.
3 The problem is though is, is that -- what disturbs me
4 about this is the fact that, and to me this is a proposal
5 that I think has some merit, regardless if we do anything
6 on the caps.
7 But would you also believe my concern is still is
8 that this would create a very huge process because we
9 don't reserve the Legislature any authority to place some
10 claim limits on what this court may have. Basically the
11 only limits under the Constitution, as I read this, would
12 be what the lawyer and the client thinks it would be. So
13 I don't think it will be -- my concern is it would not
14 create a catastrophic forum but a forum for every claim.
15 COMMISSIONER MORSANI: Well I'll let the attorneys
16 answer that, my attorney friend. Mr. Connor, do you have
17 a comment, please?
18 COMMISSIONER CONNOR: I'd like to respond if I may.
19 CHAIRMAN DOUGLASS: I think that's in that; isn't it?
20 It says something about liability under general law.
21 COMMISSIONER CONNOR: If I may, I'll try to respond.
22 Commissioner Nabors, conceptually let me tell you how this
23 came into being.
24 There were a variety of proposals that came before
25 our committee, some of which met with greater degrees of
82
1 success than others. Mr. Cunningham, Tony Cunningham from
2 Tampa, suggested an altogether different concept for
3 approaching this issue. Commissioner Morsani had
4 expressed concern about the catastrophic injuries. It was
5 perceived that there was increased resistance in the
6 Legislature to claims bills and the political wrangling
7 that went along with that.
8 And Mr. Cunningham had suggested that Florida might
9 want to adopt something that was more akin to the federal
10 tort claims provisions. And so the suggestion was made
11 that in cases that exceeded the cap, and they are few in
12 number on a comparative basis, that a provision would be
13 established where those claims would be tried not by a
14 trial by jury, because of the people's concern about the
15 potential for runaway juries on claims, but rather by a
16 court.
17 And there were provisions for an arbitration that
18 could be done as an alternative form of dispute resolution
19 in lieu of the court. But ultimately these folks would
20 have a right to a trial by the court.
21 Now the effect of that then was to try to mitigate
22 the impact of caps on people whose damages substantially
23 exceeded the caps, but to do so within a context where the
24 result was likely to be less influenced by emotion,
25 sympathy, et cetera, much as in the federal tort claims
83
1 process.
2 The issue you raise is certainly a legitimate concern
3 from a philosophical matter because in effect, arguably, a
4 court, a judge, a member of the judicial branch of
5 government by virtue of its ruling would effectively be
6 able to dictate to the county commission or the
7 legislative component, of whatever group is being dictated
8 to by virtue of the verdict, how to spend its money. In
9 other words it would have to pay an award that was awarded
10 by the court.
11 So therein lies the tension, represented from
12 Mr. Cunningham's part. And I think Commissioner Lowndes
13 and Commissioner Morsani at least felt it represented a
14 good balance between the tension of people who suffer
15 unjustly from catastrophic injuries which go in large
16 measure uncompensated by the current process, and balance
17 that, and holding the sovereign accountable for its
18 wrongdoing in that regard.
19 And I rise only by way of a point of information
20 because I have feelings about these proposals that I'll
21 express later. But I think that's the tension that was
22 attempting to be resolved there.
23 CHAIRMAN DOUGLASS: Commissioner Barkdull.
24 COMMISSIONER BARKDULL: Would Commissioner Connor
25 take the floor, please, and try to respond?
84
1 CHAIRMAN DOUGLASS: He does.
2 COMMISSIONER CONNOR: Yes.
3 COMMISSIONER BARKDULL: Commissioner, as I read this,
4 it says, Such court shall be established by the chief
5 judge of each judicial circuit. This would permit 20
6 different chief judges to decide whether they were going
7 to have a court; wouldn't it?
8 COMMISSIONER CONNOR: Since it says "shall be
9 established", I don't think it is discretionary, I think
10 it is required that it would be established under the
11 language.
12 COMMISSIONER BARKDULL: I realize it is not your
13 proposal --
14 COMMISSIONER CONNOR: It is not.
15 COMMISSIONER BARKDULL: -- why would they allot this
16 to the chief judges to establish rather than it being
17 established by -- now specialized divisions can only be
18 established by general law.
19 COMMISSIONER CONNOR: Yes, sir, I can respond to
20 that. And it was that Mr. Cunningham was made aware of
21 the fact that every attempt to enlarge the court system by
22 a family division or by criminal, new criminal division,
23 et cetera, had met with less than resounding success. And
24 that this would be a simplified process which would
25 enable, within the existing structure, which through the
85
1 appointed process by the chief judge would enable the
2 counties in the various circuits to deal with these
3 issues.
4 COMMISSIONER BARKDULL: But obviously it would
5 increase the judicial workload of the circuits.
6 COMMISSIONER CONNOR: Without a doubt it would.
7 COMMISSIONER BARKDULL: But the power to increase
8 judicial personnel is left with the Supreme Court
9 certificate and the legislative action.
10 COMMISSIONER CONNOR: That's right, yes, sir.
11 COMMISSIONER BARKDULL: So the chief judge can go
12 create one, but he may not have anybody to sit there.
13 COMMISSIONER CONNOR: I'm all for the separation of
14 powers, by which the Legislature determines whether or not
15 it is going to fund the judiciary's activities and
16 whatnot. So you are absolutely right. That's the kind of
17 tension that comes into play here and there is that
18 tension that is to be addressed as to whether or not a
19 judicial officer can then in effect bind the executive
20 branch in the local county, or whatever the case may be,
21 by its ruling.
22 COMMISSIONER BARKDULL: Thanks for the response. I
23 have some problem with it.
24 CHAIRMAN DOUGLASS: Commissioner Morsani.
25 COMMISSIONER MORSANI: May I comment, Commissioner
86
1 Barkdull? I believe -- as you-all know I'm an automobile
2 mechanic and I don't know anything about this law stuff,
3 but I believe that the courts right now, individual
4 courts, are being permitted to experiment with different
5 ways they are conducting their business today; i.e., they
6 are right now, at least one that I know of, has taken one
7 judge or two judges and said, okay, any trial that's going
8 to be over two weeks, we are going to have this over in
9 this division.
10 I don't necessarily think it is the impact on the
11 judicial branch that we may be thinking it is because of
12 the very limited number of claims. As an example, in the
13 claims process right now, in the last three years, since
14 1995, there have only been 35 -- what do you call those
15 claims, claims bills -- there have only been 35 claims
16 bills submitted to the Legislature in this city. So I
17 have a hard time thinking that this is a monumental
18 problem, but I don't understand your system, sir.
19 COMMISSIONER BARKDULL: Would you believe me,
20 Commissioner Morsani, that this would permit any tort
21 lawsuit where the lawyer wants to sign the certificate to
22 be permitted to bring his lawsuit and it wouldn't be
23 limited to after judgment to start talking about claims
24 bills. This says from the word go.
25 COMMISSIONER MORSANI: I'm conscious, I kind of
87
1 thought I said that early on. I understand that.
2 CHAIRMAN DOUGLASS: Now Commissioner Barnett has been
3 trying and trying and I'll get the rest of you.
4 Commissioner Hawkes is next.
5 COMMISSIONER BARNETT: I have a series of questions
6 and I don't know who to direct them to, but let me just
7 ask the first one and then I have a couple more on a
8 different subject.
9 I have only been involved in one claims bill in my
10 life in the Legislature and I agree it is a complex and
11 difficult process. But the claims bill that I was
12 involved in did not relate to tort. It had nothing to do
13 with tort or actual damages that came from a judgment in a
14 lawsuit. It was really more of an equitable, moral issue
15 that we raised with the Legislature through the claims
16 bill process.
17 And I want to make sure that by constitutionalizing
18 in some way a court of claims and a claims bill process,
19 that the right of citizens to approach the Legislature for
20 redress on a claims bill concept for moral or ethical or
21 other claims or relief has not been impacted in any way by
22 this particular proposal. Now I think I heard someone say
23 that, but when you start constitutionalizing something
24 that's really there by legislative grace now in some way,
25 I just want to make sure that that process remains
88
1 available for people.
2 COMMISSIONER LOWNDES: Mr. Chairman, I can't answer
3 that question but I can, I would like to suggest or I
4 would like to move that we would TP this and give it a
5 little further thought. This really came up very quickly
6 and I think parts of it are not well thought out. And I
7 think there are people interested in this proposal but
8 probably not in the language that it is now. And I would
9 like to request that we TP it.
10 CHAIRMAN DOUGLASS: I think that's fair. I think the
11 questions -- Commissioner Hawkes --
12 COMMISSIONER BARNETT: Mr. Chairman, I think before
13 you do there are a number of questions that we ought to
14 get on the floor --
15 CHAIRMAN DOUGLASS: That's fine.
16 COMMISSIONER BARNETT: -- so that the people that are
17 going to relook at it can at least know some of the
18 concerns.
19 CHAIRMAN DOUGLASS: Very good. That's a good
20 thought. And do you have other questions because
21 Commissioner Hawkes has got --
22 COMMISSIONER BARNETT: I had a couple.
23 CHAIRMAN DOUGLASS: Okay. Couple them on.
24 COMMISSIONER BARNETT: A couple. The first was who
25 pays for this? When you are creating this claims process,
89
1 are you creating kind of, it is not an Article V, but are
2 you creating some kind of judge? And I know Commissioner
3 Connor referred a little bit to some of the separation of
4 powers, but there is a real question about what you are
5 creating here and who pays for it. Does that somehow
6 impact the Article V costs?
7 Another question I would have is when you grant the
8 de novo trial, again in circuit court, whether you could
9 anticipate the number, the increased burden on the circuit
10 courts from a de novo trial really on a question of claims
11 after the judgment. And I guess the third part of that
12 is, is there contemplated that there will be a right of
13 appeal from the trial court proceedings to the appellate
14 courts?
15 So it is just the process and the payment that I have
16 a series of questions about.
17 CHAIRMAN DOUGLASS: All right. Commissioner Hawkes,
18 you were next and then Commissioner Butterworth is next
19 and then Commissioner Brochin is next and then
20 Commissioner Jennings is next.
21 COMMISSIONER HAWKES: Thank you, Mr. Chairman. I
22 wanted to ask Commissioner Barkdull a question as to I
23 understand that there may be some reluctance to create
24 additional courts and I was wondering if the language was
25 changed that it would basically instruct a procedure to be
90
1 put in place where the chief judge of each circuit would
2 appoint an arbitrator to hear these claims. We are not
3 creating an additional court, we are just creating a, an
4 additional right for Florida's citizens.
5 If they wish to take advantage of this, then they
6 would do the good faith certification that it's over and
7 the Supreme Court would pass the sanction rules and the
8 Legislature would set up the procedure for the chief judge
9 to appoint the arbitrators, and if that would address some
10 of your concerns about an additional court and some of
11 your funding questions.
12 COMMISSIONER BARKDULL: You are reading my mind,
13 Commissioner Hawkes. I thought it was an additional court
14 and I wasn't going to like it.
15 But I think that possibly, and maybe when they recess
16 they can think about this, in the opening part of the
17 Article V where it establishes the courts and says no
18 other court shall be established, there may be a grant of
19 power to the Legislature to create some type of a vehicle
20 to address these problems. I don't know that I would
21 support it, but I think that's where it belongs.
22 And more than just a grant of power to the
23 Legislature, I think -- I don't think it should go any
24 further than that in trying to define it. I think it
25 ought to be left up to the Legislature. It could be done.
91
1 COMMISSIONER HAWKES: I think the goal -- just to
2 follow-up, Mr. Chairman -- was that it would be an
3 arbitration process that the parties could participate in.
4 And I think that there was some desire that the courts
5 obviously oversee that arbitration process and that we're
6 not tampering with anybody's right to jury trial because
7 we're dealing with sovereign immunity so we have a right
8 to do it however we want.
9 And then a mode of redress was going back to circuit
10 court if you felt you could beat it by 25 percent. And I
11 was wondering if we made it so that the chief judge --
12 COMMISSIONER BARKDULL: I think it ought to be the
13 chief justice. Frankly, that's a small item but I think
14 it establishes through the Supreme Court any such animal
15 if we're going to have it.
16 But, number two, I think that you could, in the
17 sovereign immunity section, if you want to waive it to an
18 arbitration procedure as established by general law, you
19 could do that. One of the problems that I think, and it's
20 been recognized here, is that when you have a claims bill
21 you've gone through the judgment process and generally
22 been sustained on appeal.
23 And the Legislature when it addresses the claims
24 bill, particularly as Commissioner Barnett pointed out,
25 the one she was involved with did not follow that process,
92
1 although I notice this provision only relates to tort
2 claims. But in Commissioner Barnett's situation, the
3 Legislature had the discretion in recognizing the claim
4 and realizing how much money they were going to have to
5 appropriate.
6 Whereas, when you go to this other system you're
7 going to have arbitrators, a judge or whoever, somebody in
8 another branch of government saying how much money the
9 Legislature is going to have to spend. And all these
10 factors have to be taken into account into this.
11 I in general have thought possibly the Federal Claims
12 Act might be a guide to this problem. I don't know
13 whether with a little bit of conversation -- I didn't hear
14 about this until about 15, 20 minutes ago, that I'm ready
15 to endorse the proposal as it is. I think there should be
16 possibly some relief. But I would, rather than locking it
17 into the Constitution, leave it within the prerogative of
18 the Legislature.
19 CHAIRMAN DOUGLASS: All right. Now there are several
20 people that wanted questions. We're going to run until
21 12:00 and then we're going to break for lunch.
22 Commissioner Jennings asked to be recognized.
23 COMMISSIONER JENNINGS: Mr. Chairman and
24 Commissioners, I'm back in the mode of information as
25 opposed to questions.
93
1 And actually while I'm up, I'll share with you-all
2 that the issue of saying "would you believe" is one that
3 happens only in the House of Representatives. In the
4 Senate we ask of each other as Senators and of course we
5 would believe because a Senator would never say anything
6 that was not truthful, true and factual. So we're here in
7 the Senate so why don't we --
8 CHAIRMAN DOUGLASS: How do you respond when you don't
9 agree, say, I think you're uninformed?
10 COMMISSIONER JENNINGS: You just -- yeah. Say, you
11 bloodsucker, you are wrong.
12 CHAIRMAN DOUGLASS: Gotcha.
13 (Laughter.)
14 COMMISSIONER JENNINGS: It comes with this desk. It
15 just seeps right out of this microphone. The spirit of
16 him is still in here somewhere.
17 I'd like to share with you just a couple of thoughts.
18 And the other evening, actually, Commissioner Morsani and
19 Commissioner Lowndes and I were talking about this very
20 issue. I would love for this proposal not to go away
21 because on behalf of the Legislators who have had to deal
22 with the claims process, it's not very pretty. It
23 actually is not very just to the person who has been
24 injured in many instances.
25 And I share that with you because you have a couple
94
1 of things that happen. You have an injured party injured
2 by or in connection with a local government or the state
3 or a political subdivision like a hospital taxing district
4 where something has happened. They bring a suit -- there
5 are a couple of ways -- obviously they bring a suit. They
6 go through the entire process. I have got my special
7 master over here so nod if I'm right or wrong. Actually I
8 taught him.
9 They go through this entire process and they get an
10 award by a jury, sometimes by settlement of the local
11 government. Senator Langley will keep me straight. The
12 nonlawyer is explaining this. Now there is something
13 wrong with this process right here. They do all that and
14 then the local government or political subdivision says,
15 Well, that's fine, we can pay you $100,000; now you have
16 to go to the Legislature to get the rest.
17 So they come up here and a claims bill is filed and
18 maybe as a result of a settlement, an excess judgment,
19 maybe a jury award, maybe -- and I'm talking about those
20 that have been through a process as opposed to the kind
21 that Commissioner Barnett was talking about which you
22 didn't mention it, but it was Rosewood and it's a
23 different situation.
24 So they come up here and we assign a special master.
25 And they have to have a sponsor, just like any bill. And
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1 they assign a special master to essentially rehear the
2 evidence. Now they don't retry the case, but we rehear
3 the evidence. From time to time different recommendations
4 are made. And then the rest of the process starts that is
5 not very pretty when you're talking about an injured
6 party.
7 And that's the process where potentially the local
8 government hires a lobbyist to come up here and fight the
9 bill. Usually the person involved, and this is sort of a
10 new industry that has happened here in Tallahassee, the
11 lawyer who is representing the injured party contracts
12 with someone up here that knows the Legislature and they
13 come and they lobby the bill.
14 So all of a sudden what is just, right and true and
15 what has happened as a result of judicial action suddenly
16 comes right back into the political process and it's kind
17 of like who you talk to and who votes for what and all
18 those kind of things. And, you know, that's okay, when
19 it's issues of merit that each one of us have to go back
20 and talk to our constituents about.
21 The claims bill process is pretty much ignored. And
22 I was so concerned about it that I actually put a hold on
23 claims bills last year to try to change the process. What
24 would happen is they would go through all of this, they
25 would be done the last night of the session, we'd have a
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1 whole stack of them, we would give away a whole lot of
2 money.
3 And Commissioner Sundberg asked me about it. If it
4 was a judgment against the local government, they do have
5 to pay. We take it out of revenue sharing or take it out
6 of something that we've got of theirs. If it's against
7 the state, obviously it comes out of our general revenue.
8 If it's against a department that has a trust fund, we
9 take it out of that. So all the people of Florida aren't
10 necessarily paying for the wrong done in St. Petersburg or
11 whatever when you come back to it.
12 But the political process stirs around. We did these
13 the last night of the session in many instances. In
14 previous years, those nights were sometimes early morning.
15 We wouldn't discuss them very much. They are -- it's not
16 a good way to handle legislation and it's certainly not a
17 good way to handle injured party judgments.
18 If we can figure out a way to do it any differently
19 I, for one, on behalf of the Florida Senate will say,
20 We're with you. It just -- Commissioner Scott can share
21 some thoughts. It's just not a very good way to do it.
22 And the reason we have to do it is because of the way
23 sovereign immunity is set up in our Constitution at the
24 moment. I tried every way possible to say, Can I push it
25 back to the local government? Can I do anything to make
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1 them have to deal with this? They said, No, you can't do
2 it. Because of the way it's set up, the Legislature will
3 always have to deal with it in this manner.
4 So I hope we don't temporarily pass it too long and
5 too far. I would like us to work through. I don't know
6 much about the tort system at the federal level, but it
7 sounds like a better way to do it. It is certainly
8 probably a way that is more fair to an injured party than
9 the way we have it currently set up. And I just wanted to
10 share that with you as we go forward because it's not a
11 very nice process; it's not the best way to handle things
12 and we're trying to do it in a little bit at least more
13 organized manner.
14 As a matter of fact, we have been through the whole
15 claims process in the Senate. Ways and Means has heard
16 every claims bill. As a matter of fact, the committee had
17 accused me of saying that this was my way of getting them
18 ready for tort reform because I made them listen to all of
19 these, almost all of them. They are out, most of them are
20 out. We have 40 -- 36. We have 36 this year. Some may
21 be as a result of not doing any last year.
22 But they continue to grow in number and in judgment
23 size as we go on. And the Legislature is probably not the
24 best place to handle these kinds of issues. We handle
25 other things very well. This one we don't necessarily
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1 handle as well as they could be.
2 CHAIRMAN DOUGLASS: Commissioner Thompson, would you
3 take the chair? I'd like to be indulged just to be heard
4 on this a moment. You can go ahead, Commissioner Smith.
5 (Commissioner Thompson assumes the Chair.)
6 COMMISSIONER SMITH: Thank you, Mr. Chairman. In the
7 spirit of just trying to get issues on the floor so we can
8 talk this out and at least put forth the best possible
9 proposal -- whether it is approved or not, we want to at
10 least have the best we can do -- my concern is what
11 happens in a situation where there is a catastrophic
12 injury and the defendants are both a sovereign and a
13 nonsovereign.
14 So you have a catastrophic injury. You can certify
15 that it's in excess of whatever the statutory caps are;
16 one happens to be a governmental entity, one happens to be
17 a major corporation. So does that go -- do you have one
18 suit with the nonsovereign in a jury trial as it presently
19 stands now, and litigation against the sovereign in this
20 claims type court process? And I don't know the answer to
21 the question. I just want to throw it out as something to
22 consider in terms of trying to refine the proposal.
23 COMISSIONER THOMPSON: Commissioner Douglass.
24 CHAIRMAN DOUGLASS: I'd like to just address this
25 because we've dealt with this and I've dealt with this for
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1 43 years and have seen it evolve and change.
2 For many years up until about 1981, there was no,
3 quote, sovereign immunity for municipal corporations.
4 They were exempted by court decision from governmental
5 activities, but anything that was considered proprietary
6 by a municipality was not subject to limits or anything
7 else. They were just like every other corporation in that
8 regard. The municipalities carried insurance. They
9 didn't handle claims. They were handled by the insurance
10 just like they would for any other corporation. The suits
11 went to trial. They were tried by a jury or they were
12 settled or whatever and it was done like every other
13 lawsuit.
14 The state, on the other hand, had limited immunity
15 from lawsuits. And I say "limited" because the law
16 allowed you to sue the driver of the truck. If the driver
17 of the state road department truck, as it was then, was
18 neglect, drunk, whatever he was, and ran over you and hurt
19 you, you could collect just like anybody else. And guess
20 what? They carried insurance and they were covered and
21 they were treated like every other lawsuit.
22 When you got to the insurance coverage, as any lawyer
23 will tell you, then you start looking around to settle.
24 When you get to the limit of what somebody can pay, no
25 matter what the damages to your client is, you have to
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1 start figuring out what is best, to stay in court three
2 years or to take what is there.
3 And that's what's happened in the progression of
4 this. We came along so that in 1978 the commission here
5 voted almost unanimously to abolish the theory and allow
6 the state to be sued the same as any other private company
7 or individual and be treated the same. And what's
8 happened in the 20 years since is the progression of
9 government. It has become the most powerful tool, the
10 most powerful thing in the world. It's become sacrosanct.
11 We didn't have a huge building built by the League of
12 Cities. We didn't have those lobbyists. We didn't have
13 those people that were organized to keep the public from
14 recovering the damages in cases such as this and in other
15 areas. We didn't have all of these public things going on
16 that we're opposing that were considered individual rights
17 of people.
18 And these governments with their associations have
19 got this government -- and I'm not condemning anybody,
20 it's just the evolution of government, big government if
21 you want to call it that -- and it keeps going to where
22 when the government injures you, no matter whether it's a
23 city government, the state government or the county or
24 whoever else, one of their drivers, a legislative driver,
25 whatever, it wouldn't make any difference. You are in a
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1 different ball game.
2 And no matter how badly you're injured, you are
3 limited under the law set by these people who have got the
4 Legislature to go along with this program to $100,000.
5 Now, I want to tell you, if you think $100,000 will cover
6 a normal bad injury in an automobile accident, you haven't
7 looked at any Medicaid bills, you haven't look at any
8 hospital bills. And I guarantee you, you can stay in a
9 hospital a week with one of these multiple fracture deals
10 and you're looking at a hospital bill that's in the $50-
11 to $75,000 range.
12 Now this is what's happening in the real world. And
13 we play games with this because there won't be any
14 governmental bankruptcy if you'd wipe out the whole thing
15 and go back to what it was for many, many, many years.
16 You won't have a bit of change in these governments. They
17 will buy the insurance. And what they will do is the same
18 thing you do with your car. You get 100/300 coverage and
19 then what do you do? That's where all the money is, there
20 and in the collision coverage. It's in the first basic
21 coverage.
22 Then you will buy yourself an umbrella, which we all
23 do, and you'll get, like most of us do, you can get
24 $3 million over 100/300 for about $250 a year. It wasn't
25 Tallahassee, but it's only four or 500 though anywhere in
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1 the state. The point is the upper limits are not what
2 costs in insurance. It's the basic 100/300 or whatever
3 you have.
4 Now what other states have done in some instances is
5 they have the insurance, then the city or whatever it is
6 has a deductible. And they're self-insured up to the
7 first say 100,000 or 500,000 or whatever it is. And they
8 have -- the insurance policy then has the insurance
9 company adjust the claims, just like they do in your case.
10 So you wipe out this entire bureaucracy that runs
11 around the claims people or the division of whatever it is
12 that deal with these things on the state level or on the
13 city level. You get rid of that and they go to work for
14 the insurance company, assuming they are qualified to do
15 so, and then they adjust the claims. The city doesn't
16 fool with them, the county doesn't fool with them, the
17 insurance company fools with them. And they are paid by
18 insurance.
19 Well everybody got together, except the trial lawyers
20 are bad people. They represent injured people. So
21 therefore anybody that sues somebody is a bad person.
22 I've been a trial lawyer, I've been a criminal trial
23 lawyer, I've been a governmental trial lawyer, I've been
24 every kind of bad trial lawyer you can have, including
25 representing big corporations for big fees. And I'll
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1 guarantee you that I've enjoyed every minute of it,
2 whichever side I was on.
3 But I have never ever enjoyed representing a person
4 or a child who was run over by a city truck and left as an
5 invalid for the rest of their lives and being told with a
6 straight face, we can only pay you $100,000 and then you
7 can go down and see the Legislature and see if you can get
8 more.
9 Now let me tell you what happens when that occurs,
10 from experience, many, many experiences including, as
11 Commissioner Brochin will tell you, after the claims bills
12 are done you get lobbied in the Governor's Office to try
13 to get the Governor to veto them. It takes three-fifths
14 vote in each house to pass a claims bill. It's a tough
15 deal. But you go in there and then when they get it
16 there, they come work on you over there, too.
17 But what happened in one case, only one case that I
18 know about that I'll tell you. There was a little boy
19 that was injured in a county hospital in a small county
20 west of here. The jury in that county, in a medical
21 malpractice case, found the hospital liable for this
22 paraplegic who was almost a quad. His name was Little
23 Roy, I remember that part of it anyway.
24 And Little Roy was left like that. And his parents
25 of course were not well off. They were just average
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1 people that lived in this county. But the jury returned a
2 verdict of I think it was 1.6 million, which by South
3 Florida standards might not have been much for this case
4 at all. It's been a number of years ago, but it was a
5 sizable verdict.
6 And so the city or county who owned that hospital
7 said, You know, we're not going to pay you but the hundred
8 thousand, it might have even been 50 then, I can't
9 remember for sure. You have got to go to the claims bill.
10 So the lawyer who got the judgment, who didn't know
11 anything about claims bill, he comes over here and he
12 hires, and he's told by the people in the House of
13 Representatives that he better hire that -- a lobbyist.
14 So he does. And the lobbyist then gets the bill finally
15 passed in a lesser amount and the lobbyist wanted half of
16 the fee which was reduced by the claims procedure in the
17 Legislature for the lawyer that got it.
18 Now all of this is done. And guess what happened?
19 It turned out that the county had insurance that was never
20 revealed to the claims committee or anybody else. And so
21 Little Roy was left, as I recall, with a net over his
22 100,000 of about 200,000 after the lobbyist was paid and
23 after the lawyer got what he got.
24 Now that's what's unfair about this and that's what
25 Commissioner Jennings is talking about. You can't expect
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1 the Legislature to deal with this. You can't expect
2 anybody other than the court in some form to deal with it.
3 And I think the process that's being proposed as an
4 alternative to this very -- you can't call it corrupt, but
5 it certainly is wrong. It certainly is a wrong procedure
6 that we have now.
7 And I'm not going to benefit from this. I'm through
8 walking down the aisle on these big cases and I'm through
9 with that. But I think if we want to do something that
10 will benefit the entire population of the state, we should
11 address this issue much like the people who are nonlawyers
12 who see the wrong here. But there are many ways to do it,
13 including the federal tort claims model and others.
14 But there has to be a way that we can do it without
15 the infectious influence of the governmental lobbyists
16 telling us it will make them bankrupt because they can buy
17 the insurance and they can keep going. There is always
18 caps, there is always these things. And that's all I'm
19 going to say.
20 COMMISSIONER BARKDULL: Point of order, Mr. Chairman.
21 COMISSIONER THOMPSON: Commissioner Barkdull, you
22 raise a point of order?
23 COMMISSIONER BARKDULL: Yes, sir, we've reached the
24 time of adjournment.
25 COMISSIONER THOMPSON: Recess?
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1 COMMISSIONER BARKDULL: Yes, sir.
2 COMISSIONER THOMPSON: Commissioner Anthony was
3 trying to get his attention to ask him a question, is that
4 what you wanted to do while he was on the floor?
5 COMMISSIONER ANTHONY: I can wait until after lunch,
6 but I tell you it's a difficult time because such passion
7 based upon the proposal, and that was not on the
8 amendment. First of all, the discussion and the
9 presentation made by Commissioner Douglass really did
10 extend to the general proposal.
11 So I can wait until after lunch on that, but there is
12 some real points I think we need to discuss in these
13 chambers that I think were a lot more leading than I think
14 accurate on some of the assessments.
15 COMISSIONER THOMPSON: Commissioner Barkdull moves
16 that we recess until what hour?
17 COMMISSIONER BARKDULL: Two announcements. Style and
18 Drafting meets 12:00 to 1:00 in Room 317 in the Capitol.
19 Those of you that may be thinking about attending the
20 public hearing in St. Petersburg, the deadline for making
21 reservations is today.
22 I move you, sir, that we recess until 1:15.
23 COMISSIONER THOMPSON: Commissioner Connor, for what
24 purpose?
25 COMMISSIONER CONNOR: Announcement.
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1 COMISSIONER THOMPSON: You're recognized.
2 COMMISSIONER CONNOR: In view of the exhortation that
3 we've had about considering these matters during, while
4 it's TP'd, when it is TP'd, there has been a request that
5 the Select Committee on Sovereign Immunity meet to discuss
6 the matters that had been raised. So we will do so
7 immediately upon recessing in Room 214 of the Capitol for
8 all and whosoever may come.
9 COMISSIONER THOMPSON: Further announcements?
10 Hearing none we're in recess until 1:00 p.m.
11 (Session recessed at 12:00 p.m. to be continued at
12 1:00 p.m.)
13 CHAIRMAN DOUGLASS: All right. We are going to get
14 off of the board here because a couple of people were
15 locked out. And we are all going to have to push the
16 button again, right? Is that what is going to happen?
17 (Pause.)
18 All right. Commissioner Marshall, they had it where
19 you couldn't vote, it wasn't working too good. I think
20 maybe Commissioner Thompson was locked out too, he just
21 didn't know it maybe. Let me know when you are ready.
22 SECRETARY BLANTON: All commissioners indicate your
23 presence. All commissioners indicate your presence.
24 (Quorum taken and recorded electronically.)
25 CHAIRMAN DOUGLASS: Has everybody signed in? Madam
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1 Secretary. Commissioner Marshall, have you pushed your
2 button lately? Try it again. He is on the board.
3 Commissioner Barkdull, you need to push yours and see if
4 you are here. Yeah, he is here. All right, is everybody
5 in now? Okay. We have a quorum.
6 SECRETARY BLANTON: Quorum present, Mr. Chairman.
7 CHAIRMAN DOUGLASS: All right. We'll come to order,
8 please. I think Commissioner Thompson, when we adjourned
9 nobody had the floor, right? Is that correct?
10 Commissioner Lowndes, you are recognized.
11 COMMISSIONER LOWNDES: Yes, Mr. Chairman. I would
12 like to withdraw the amendment to the amendment that we
13 were discussing. And there's a substitute amendment which
14 I think is going to be on the desk in a minute being made
15 by Mr. Langley, I think, Commissioner Langley, excuse me.
16 CHAIRMAN DOUGLASS: All right. So you are
17 withdrawing the amendment that was before us?
18 COMMISSIONER LOWNDES: The amendment to the
19 amendment.
20 CHAIRMAN DOUGLASS: The amendment to the amendment.
21 And the one then that's left is the original amendment
22 offered by Commissioner Zack; is that correct?
23 COMMISSIONER LOWNDES: Yes, as amended.
24 COMMISSIONER ZACK: That's correct, but the new
25 amendment may change that as well. So, if that one is
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1 TP'd, we may better move on.
2 CHAIRMAN DOUGLASS: Commissioner Langley is prepared,
3 we are just trying to get it I think in form to pass it
4 out; is that correct? It's coming, it'll be here shortly,
5 Commissioner Langley.
6 (Pause.)
7 CHAIRMAN DOUGLASS: Okay. They are passing out the
8 amendment to the amendment. Do you want to TP this? All
9 right, Commissioner Langley wants to TP this, as does
10 Commissioner Zack. And without objection, we will TP it
11 and take it up as soon as we finish this particular item,
12 the next item coming up. Is that agreeable, Commissioner
13 Langley and Commissioner Zack, we'll take it up after the
14 next item after the one we are going to take up?
15 Okay, we are now on -- Commissioner Anthony, do you
16 want to carry yours over with that too, your sovereign
17 immunity one?
18 COMMISSIONER ANTHONY: Yes, sir.
19 CHAIRMAN DOUGLASS: And Commissioner Freiden is
20 carrying hers over. And then we'll go to Committee
21 Substitute for Proposals 49, 103 and 185 by the Committee
22 on Finance and Taxation, Commissioners Anthony, Henderson
23 and Mills, revising the requirements for exempting
24 municipally-owned property, allowing the Legislature to
25 exempt from taxation, et cetera. This is the one that's
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1 caused a lot of contact to us all. At this point, I would
2 like to ask that it be read.
3 READING CLERK: Committee Substitute for Proposal
4 Nos. 49, 103 and 185, a proposal to revise Article VII,
5 Section 3 of the Florida Constitution; revising the
6 requirements for exempting municipally-owned property;
7 allowing the Legislature to exempt from taxation property
8 owned by a governmental entity and used for airport,
9 seaport or public purposes, and as defined by law, and
10 uses that are incidental thereto.
11 CHAIRMAN DOUGLASS: All right. Who is going to
12 present this committee substitute?
13 COMMISSIONER ANTHONY: Mr. Chairman.
14 CHAIRMAN DOUGLASS: Commissioner Anthony, you are
15 recognized.
16 COMMISSIONER ANTHONY: Thank you very much,
17 Mr. Chairman. As has already been noted, this is the
18 Committee Substitute for Proposals 49, 103 and 185. This
19 committee substitute is a result of about 12 hours of
20 deliberation of the Finance and Taxation Committee. It
21 seeks to solve the problem of taxation of public property
22 which has been leased to private proprietary concerns,
23 which because of the use of the property, performs
24 identifiable public purpose.
25 This is a very difficult subject, and hence, that's
111
1 why it took so many hours of deliberation and somewhat
2 confusing, based on the legal status in regards to the
3 types of government -- governmental entities involved.
4 Property owned by state counties or school boards are
5 immune from taxation presently. This is a result of the
6 Florida Supreme Court based upon 100 years of common law
7 that the unique nature of these types of governmental
8 entities immunizes their property from taxation as a state
9 political subdivision. And that's very important to note,
10 they are state political subdivisions.
11 This committee substitute does not change, in any
12 way, does not change in any way, the tax status of
13 property owned by state, counties or school districts. At
14 present, municipal and special district property is
15 exempt, not immune from taxation if the property is used
16 by a municipality or a special district for municipal or
17 public purposes.
18 The committee substitute makes two substantive
19 changes that I think I would like to share with you at
20 this time. First, municipal property would be exempt from
21 taxation if the property were used for governmental or
22 municipal purposes regardless of the type of entity which
23 uses the property for these purposes. This will permit
24 cities greater flexibility in the use of their property
25 for governmental purposes, including the concept that we
112
1 all talk about, outsourcing and privatization.
2 Second, a new sentence will be added to Article VII,
3 Section 3(a), to permit the Legislature to exempt from
4 taxation municipal property and special district property
5 used for airport, seaport, or public purposes as defined
6 by general law.
7 With the addition of these sentences the Legislature
8 would be authorized to evaluate when certain types of
9 municipal or special district property is used for public
10 purposes. And if the Legislature determines it necessary
11 to exempt such property from taxation, the exemption is
12 not mandatory, it is not mandatory, it is a permissive
13 grant of authority to the Legislature.
14 In Florida, what we are trying to achieve is a level
15 playing field. And this amendment, this proposal,
16 committee substitute of 12 hours of deliberation before
17 the committee, and about 40 to 50 hours of deliberation
18 and consideration during this term of our commission, has
19 brought together people who are truly concerned about
20 creating that level playing field in Florida, for local
21 governments and other entities.
22 Commissioner Henderson is also available and a part
23 of this. And Commissioner Henderson, would you like to
24 add anything to these opening comments, since I'm chairing
25 the meeting at this time?
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1 COMMISSIONER HENDERSON: I yield. Thank you.
2 CHAIRMAN DOUGLASS: There are three amendments on the
3 table.
4 COMMISSIONER HENDERSON: Mr. Chairman, if we could
5 finish the introduction of it.
6 CHAIRMAN DOUGLASS: Absolutely.
7 COMMISSIONER HENDERSON: And I would like to then
8 yield to Commissioner Scott to make --
9 CHAIRMAN DOUGLASS: Well, Commissioner Scott has an
10 amendment and then there are two other amendments.
11 COMMISSIONER HENDERSON: We would like to set the
12 floor first if we could, Mr. Chairman.
13 CHAIRMAN DOUGLASS: Okay. How many of you are going
14 to set the floor?
15 COMMISSIONER HENDERSON: Well, we finished
16 introducing the issue --
17 COMMISSIONER ANTHONY: Just the sponsors, Mr. Chair,
18 if you could provide us this opportunity, we would
19 appreciate it.
20 CHAIRMAN DOUGLASS: We will absolutely do that.
21 COMMISSIONER ANTHONY: Thank you, sir.
22 COMMISSIONER HENDERSON: Thank you, Mr. Chairman,
23 thank you, Commissioner Anthony. I would like to thank
24 Commissioner Anthony for all of the hard work that he's
25 put together on this with regard to the multiplicity of
114
1 interests that are involved in this issue and to thank
2 Commissioner Scott for his time in chairing the Committee
3 on Finance and Taxation, and also working with the
4 multiplicity of interests that are involved in this.
5 I never knew that it would be so hard to create a
6 level playing field. Some of these issues were -- I was
7 familiar with and some of these issues came as a complete
8 surprise to me. I have always known that county property
9 was immune from taxation, but when you get into the way
10 that it works in the cities, in the individual cities and
11 in our ports and seaports, it is extremely complex.
12 So, it is amazing to me to learn that, as Florida
13 strives to move forward to be a player in a global economy
14 and compete in import and export with other countries,
15 with the significant economy that we are here in Florida,
16 that our gateways, that our gateways to the economy, the
17 Orlando airport, Tampa seaport, the Tampa airport, Port
18 Canaveral, our ports, and seaports and airports are all
19 treated very differently, all treated very differently.
20 You would think that as important as those entities
21 are to our status in our economy, in our global economy,
22 that they would be treated the same.
23 But, no, we found out that, you know, that over time,
24 that these entities had been treated differently,
25 depending upon whether or not it was a county-owned port,
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1 county-owned airport, city-owned airport, city-owned port,
2 or a special district that may have been created as a
3 creature of the Legislature at a time to accommodate a
4 particular public/private partnership to accomplish the
5 importance of import and export and moving the commerce
6 through this state.
7 So, what we have attempted to do here is to create a
8 level playing field. And not only do we have to deal with
9 those issues, the ports and seaports and cities, but there
10 are a multiplicity of other special districts which are
11 out there. Now, I won't, you know, the health care
12 industry, how would you try to explain, you know, whether
13 the hospital, profit, nonprofit, city, county, nonprofit.
14 We have a lot of hospitals that are out there.
15 So, what we did with this proposed amendment is to
16 answer two questions. One, should government tax
17 government? And so we have answered that question by
18 saying that we do not want to treat cities so
19 fundamentally different than the way that we treat
20 counties. And the second thing is, can we create a level
21 playing field among the various entities that exist within
22 our economy to make us work together as one so that we are
23 not competing Orlando versus Miami, Orlando versus Tampa,
24 Orlando versus Jacksonville, and on and on, and this
25 language does this.
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1 Instead of going through the process of fine-tuning
2 and deciding what will be in and out, we created the
3 language, and Senator Scott offered the amendment which
4 will create this opportunity of a level playing field, so
5 that the Legislature can decide what is the appropriate
6 public purpose, what is the appropriate municipal purpose
7 and decide how this will be done. So, that is the purpose
8 of the amendment. Mr. Chairman, I would yield then to
9 Commissioner Scott for the purpose of his amendment.
10 CHAIRMAN DOUGLASS: There's an amendment on the table
11 by Commissioner Scott. Amendment number one. Would you
12 read the amendment, please?
13 READING CLERK: By Commissioner Scott, on Page 1,
14 Line 19, delete the phrase "municipal or public" and
15 insert "or municipal". And on Page 1, Line 21, delete the
16 phrase "governmental entity" and insert "municipality
17 otherwise exempt from taxation or by special district".
18 CHAIRMAN DOUGLASS: Commissioner Scott.
19 COMMISSIONER SCOTT: All right. Mr. Chairman,
20 Commissioners, as Commissioner Anthony said, we have
21 worked long and hard on this issue. We had several
22 competing ideas of how to address this from various
23 interests around the state. We have basically two
24 proposals that come to the commission under the rules.
25 This proposal was voted, I'm not sure -- it wasn't
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1 unanimous, but by an overwhelming majority of the Finance
2 and Taxation Committee. This amendment, what this
3 amendment does is basically get this in the form that we
4 feel it should be in. And what it does is, she didn't
5 read the whole thing, but it strikes the word, or public,
6 in the first sentence, which would mandate what happens
7 with municipal tax exemptions.
8 And then in the second part of the amendment, it
9 deletes the phrase, governmental entity. Because the
10 counties were concerned that that was ambiguous and it
11 could affect their immunity which they now have. So,
12 instead, we put -- we inserted "municipal not otherwise
13 exempt from taxation or by a special district".
14 I did something a little unusual here. We attached
15 to it a handwritten, so that you could see, if you get the
16 right amendment, you can see how it now reads with the --
17 if you adopt this amendment how it would read.
18 So, that's the reason there's two pages to the
19 amendment, because we didn't want there to be a drafting
20 problem if there were any other amendments.
21 So simply, I would ask you to adopt this amendment
22 that would then put this proposal in the form that the
23 people who are supporting it, the commissioners who are
24 supporting it and the majority of the committee feel it
25 should be in. And at that point, then we will, you know,
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1 be prepared.
2 If anybody has any questions, I'll try to answer
3 them. But it does just what, it allows -- right now, the
4 reason why do this at all, the Constitution says that we,
5 because of some court decisions, this cannot be dealt with
6 by statute. And what this proposal does, essentially, is
7 go forward and say, We are going to deal with this by
8 statute. It names airport and seaport, it includes
9 municipalities, and it allows for a definition by general
10 law of what a public purpose is. And that's basically
11 what the proposal is.
12 So, I would ask that we adopt this amendment which
13 would put the proposal in the form that the proponents
14 feel that it should be in and then see what happens after
15 that.
16 CHAIRMAN DOUGLASS: All right. We are on the
17 amendment. And would this require amending the title?
18 COMMISSIONER SCOTT: No. If it does, we can fix
19 that. I think it has "title amendment" written right on
20 it.
21 CHAIRMAN DOUGLASS: It may have it right on it.
22 COMMISSIONER SCOTT: It's on the bottom of it,
23 Mr. Chairman, title amendment.
24 CHAIRMAN DOUGLASS: Okay.
25 COMMISSIONER SCOTT: I move the amendment,
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1 Mr. Chairman.
2 COMMISSIONER SMITH: Question.
3 CHAIRMAN DOUGLASS: Commissioner Smith.
4 COMMISSIONER SMITH: Thank you. Commissioner Scott,
5 if we were in public hearing and a question was asked by
6 common cause or some other citizen, what would be the
7 fiscal impact of this, what would the appropriate response
8 be?
9 COMMISSIONER SCOTT: The appropriate response would
10 be that it would depend on the actions of the Legislature,
11 which one of the reasons that the members felt we should
12 do this is so they would be able to define public purpose
13 by statute.
14 We do not know, in a couple of counties, it was
15 calculated, but we are actually not sure, but we don't
16 think that it's anything huge like some of the other
17 matters we have discussed here.
18 CHAIRMAN DOUGLASS: Any other questions? Ready to
19 vote on the amendment? This is the amendment now, number
20 one. And do you need that restated so that everybody is
21 sure what they are voting on? You are changing the words.
22 COMMISSIONER SCOTT: I just move the amendment
23 because what it does is clarify that the county wouldn't
24 be in the words governmental entity, and the other takes
25 the words, for public purpose, and just leaves
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1 "governmental" and "municipal".
2 CHAIRMAN DOUGLASS: Okay. Everybody in favor of the
3 amendment, say yea. Opposed?
4 (Verbal vote taken.)
5 CHAIRMAN DOUGLASS: It's adopted. The amendment is
6 adopted. There's another amendment on the table. Number
7 two.
8 READING CLERK: By Commissioner Brochin, on Page 1,
9 Line 21, delete, airport, seaport.
10 CHAIRMAN DOUGLASS: Read that again.
11 READING CLERK: By Commissioner Brochin on Page 1,
12 Line 21, delete, airport, seaport or.
13 CHAIRMAN DOUGLASS: Commissioner Brochin, you are
14 recognized on your amendment.
15 COMMISSIONER BROCHIN: This amendment strikes the
16 words from this proposal airport and seaport. Let me make
17 two observations first. One is that when we are talking
18 about a level playing field, there's two concepts of a
19 level playing field, one would be this one which is
20 dealing with the municipalities and special districts
21 being put on a level playing field with the county and
22 then we'll also be speaking about level playing fields of
23 public entities competing with proprietary interests. And
24 I think it's important to know on whose court you are
25 playing before you make an analysis of this.
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1 This proposal that has been offered through the
2 committee, its purpose as I understand it is to allow the
3 municipalities and the special districts a level playing
4 field with the already-exempt counties. And that's okay,
5 but if you are going to permit the Legislature to do that,
6 that's exactly what we ought to do, and the words, airport
7 and seaport, should come out of the language and we should
8 let the Legislature, which is probably the appropriate
9 place to decide what exemptions, if any, may be granted.
10 So I largely put this in here for constitutional
11 purposes and submit to you that using words like airport
12 and seaport as being, per se, constitutionally somehow
13 defined as a public purpose is not correct, and not good
14 constitutional revision.
15 I would also suggest to you, one of the reasons we
16 took 12 hours to go through this and 45 hours outside to
17 go through it is that it's not an inherently
18 constitutional issue that we can absorb, decide, and
19 conclude, for example, that an airport or a seaport should
20 be somehow exempt, either mandatory or permissive, which,
21 in my opinion, the language that they have here makes it
22 very vague.
23 Indeed, if you read it carefully, one could very much
24 argue that under this language a public purpose would not
25 be necessary to exempt an airport or seaport because the
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1 word "or" is used.
2 Nevertheless, that's not the main reason I think it's
3 appropriate. The reason I think it's appropriate is that
4 airport and seaport should come out. If airport and
5 seaport is a public purpose, which indeed I think it is,
6 then the Legislature is granted the permission by this
7 constitutional amendment to define it as a public purpose
8 and tell us exactly what airport, what type of seaports
9 are public purposes and therefore should be exempt from
10 the tax roll.
11 So, I'm not suggesting that an airport or a seaport
12 is not a public purpose, indeed I've got a stack of
13 information that everybody gives me that says it is, and I
14 believe them that it is. But I would urge you to let the
15 Legislature work that out. I would urge you to take words
16 that are unnecessary, and I would argue, very vague and
17 very ambiguous out and let the thing stand for what it is,
18 and that is to allow municipalities or special districts
19 not otherwise immune to be exempted by the Legislature as
20 defined by general law.
21 CHAIRMAN DOUGLASS: Commissioner Mills.
22 COMMISSIONER MILLS: Mr. Chairman, to oppose
23 Commissioner Brochin's amendment. When we make tax
24 policy, whether it is in the Constitution or whether it is
25 in the statutes, the first question has got to be, what is
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1 the public purpose being served. And the other day on the
2 floor Commissioner Thompson quoted former Governor Wayne
3 Mixon about the three-legged stool, the economy of
4 Florida, which he referred to as agriculture, construction
5 and tourism.
6 Well, I would submit to you that the folks that read
7 this transcript in 20 years are going to say, well, if it
8 was three-legged, and it's still three-legged, there is at
9 least a fourth leg, and that fourth leg may be number one,
10 that being trade. It's already an $85 billion industry,
11 it's going to be a $205 billion industry.
12 Florida is at the crossroads of the Americas. And we
13 are competing not with just Georgia but with the rest of
14 the world. And I would suggest to you, recognizing the
15 importance of airports and seaports in the international
16 economy in the Constitution is exactly the right thing to
17 do. It leaves to the Legislature the specifics of it, as
18 Commissioner Brochin acknowledges is a public purpose, the
19 Legislature will do a fine job of that.
20 But I sincerely believe when people look back on what
21 this commission does, the development of the new industry
22 for Florida is really trade. What is our advantage, 14
23 ports, the international airports that we have. We need
24 to make the most out of that.
25 And a final component of that, which is in the large
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1 public interest, all of those other legs of the stool, one
2 of the other things that we hope they do is generate jobs.
3 And when those other legs of the stool generate jobs
4 at the lowest level, most of those other legs of the stool
5 generate minimum wage jobs, trade generates a higher
6 level, trade to the extent that we promote it, generates
7 more higher paying jobs than any of these other areas. It
8 is a fine public policy statement to say that we want to
9 single out airports and seaports for encouragement in our
10 public policy.
11 And one of the ways that we encourage things in
12 public policies is exemptions, and we exempt lots of
13 things. We exempt and have reductions for agricultural
14 use, we have exemptions and reductions for historic use.
15 We have a lot of public policy statements. I think this
16 public policy statement is, trade through our emblems and
17 through our primary arteries of airports and seaports is a
18 good public policy statement. And I would suggest to you,
19 we need to defeat this amendment.
20 CHAIRMAN DOUGLASS: Commissioner Scott.
21 COMMISSIONER SCOTT: Mr. Chairman, Commissioners,
22 first of all, I want to second what Commissioner Mills
23 said about the importance of the ports and airports to
24 this state. I mean, the ports, for example, are a huge
25 economic engine for this state for now and in the future.
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1 But I want to also make a point to say that what this
2 does is just say, all property owned by municipalities or
3 special taxing districts used for airport purposes,
4 seaport purposes or other public purposes, because those
5 two words really modify the words' purposes, so we really
6 don't have a -- we are not sure what else, hospital
7 districts, as Commissioner Henderson mentioned, and maybe
8 others, but that's going to be for the Legislature to
9 define.
10 And so we felt strongly that this was important to
11 mention this, it does equalize for certain ports that,
12 regardless of who owns them, whether they happen to be
13 county-owned, as in the case of Fort Everglades, or Tampa
14 as a special district, it equalizes that. So, I would
15 urge you to defeat this amendment and let's go ahead with
16 the proposal.
17 CHAIRMAN DOUGLASS: Commissioner Scott, I have a
18 question that I'm not sure I understand. And I think I
19 do, but I would appreciate your telling me because there
20 may be somebody else that's as confused like me with all
21 of the different things that we have been told. Does this
22 allow any airport authority or port authority, no matter
23 how they are structured, either as part of the city or the
24 county or a special district or authority to all have the
25 same treatment?
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1 COMMISSIONER SCOTT: That is correct. The same as
2 whether, basically, as the county airports.
3 CHAIRMAN DOUGLASS: So, it would put all of the
4 seaports and airports on the same footing?
5 COMMISSIONER SCOTT: Yes, sir.
6 CHAIRMAN DOUGLASS: No matter how they were owned?
7 COMMISSIONER SCOTT: That's correct.
8 CHAIRMAN DOUGLASS: I mean, they are public bodies.
9 COMMISSIONER SCOTT: Right. And what he wants to do
10 is take out airport and seaport. And the committee felt
11 that, the majority felt like it should be left in because
12 it does state the airport purposes and seaport purposes.
13 CHAIRMAN DOUGLASS: So, this means there's no
14 distinction then between those independent governmental
15 bodies and municipally-owned.
16 COMMISSIONER SCOTT: And county-owned.
17 CHAIRMAN DOUGLASS: And county-owned, very good.
18 Commissioner Nabors is next. And you are next,
19 Commissioner Hawkes.
20 COMMISSIONER NABORS: Yes, briefly, and reluctantly,
21 I would like to, because this is Commissioner Brochin,
22 speak against the amendment. And the reason is a lot of
23 us have worked on this a long time, in the committee and
24 afterwards. And the reason, in addition to the public
25 policy reasons to include airport and seaports is the
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1 practical reason, is they are the one governmental use
2 that's so intertwined with private activities by their
3 nature.
4 In order to be competitive they inevitably are
5 involved in these private activities. And it's in the
6 area where the greatest concern is, that this
7 constitutional amendment is attempting to occur. So, I
8 think it's very appropriate they be included in the
9 language. And also, you have got to recall, it's still up
10 to the Legislature to define the scope of that definition
11 in the legislation that implements the exemption.
12 CHAIRMAN DOUGLASS: All right. Commissioner Hawkes.
13 COMMISSIONER HAWKES: I just rise to speak in favor
14 of this amendment. I'll tell you that this proposal,
15 obviously, is not a proposal that I think promotes public
16 policy. First of all, I would state that this doesn't
17 level the playing field automatically between county
18 seaports and municipal or special district seaports or
19 airports, because all this does is allow the Legislature
20 to create an exemption for these municipal or special
21 district airports where the county airports are
22 automatically immune no matter what they do, no matter
23 what they own, no matter what they buy, it's immune and
24 therefore it would never be subject to taxation under any
25 circumstance. This allows the Legislature to go in.
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1 And I would -- I would also ask you to ask yourself,
2 why are we putting this in the Constitution, this
3 language, airports and seaports? We have told the
4 Legislature, if this proposal is adopted by the people of
5 the State of Florida, that you can go in and for any
6 government-owned property that's not used by a
7 governmental entity at all, you can create an exemption if
8 you think it promotes public policy because you define
9 public policy, okay?
10 So, obviously the airports and seaports can come in
11 and make their arguments to the Legislature and I imagine
12 they can be very successful and very persuasive because
13 they have certainly shown their ability to get their
14 message out to at least this body and I'm sure they can do
15 the same with the Legislature.
16 But I would also ask you to question, where's the
17 abuse. Do we have a seaport in Florida that's on the
18 verge of -- that's having a hard time, that's had a court
19 case come out that's been incredibly unfair and adverse,
20 and seems completely contrary to public policy?
21 And I would submit to you that the cases where the
22 courts come out and say, This is taxable, is the cases
23 like the private country club in Tallahassee where the
24 Supreme Court says, just because the city of Tallahassee
25 owns the property, the fact that they lease out a private
129
1 country club to somebody else who has members and can keep
2 out who they want, you know, that looks like it ought to
3 be taxable.
4 And in every case that holds government-owned by
5 non-governmental used property taxable, I would submit is
6 a case that, if you were looking at it from a matter of
7 public policy, you would agree with. The ticket counters
8 in the airport, they are leased out, but they are exempt,
9 no one makes those taxable. What we are talking about in
10 this is when the airport leases out a space for McDonald's
11 or TGI Fridays or something like that, they lease that
12 private business space out, and the courts have said, in
13 essence, that that's probably taxable. And that's what
14 you are being asked to do here.
15 But also, and I would question Commissioner Brochin's
16 comment where he said that it may not even be necessary to
17 show public purpose, I think that that's probably a
18 correct reading of the pure language when he said that.
19 But if you go a little bit further, in other words, we are
20 going to the exempt airport, seaport for public purposes
21 as defined by general law. And, not only these good
22 purposes, and uses incidental thereto.
23 So, we have a public purpose, supposedly defined by
24 the Legislature, and then something that's incidental to
25 that is also exempt. So as soon as the Legislature
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1 creates an exemption, anything that's incidental to that
2 is also -- so, I would ask you to support the amendment.
3 The amendment makes that proposal at least fundamentally
4 sound from the constitutional perspective and keeps this
5 on a pure constitutional level and not an artificial
6 level.
7 And with that, Mr. Chairman, I would ask for your
8 favorable consideration of the amendment.
9 CHAIRMAN DOUGLASS: The amendment that's here is
10 Commissioner Brochin's amendment?
11 COMMISSIONER HAWKES: Right. I like Commissioner
12 Brochin's amendment.
13 CHAIRMAN DOUGLASS: You are supporting it.
14 COMMISSIONER HAWKES: No special mention of airports
15 and seaports.
16 CHAIRMAN DOUGLASS: I understand. Commissioner
17 Henderson.
18 COMMISSIONER HENDERSON: In opposition of the
19 amendment.
20 CHAIRMAN DOUGLASS: Proceed.
21 COMMISSIONER HENDERSON: On two issues that have been
22 raised that I want to address in opposition. First to
23 Commissioner Brochin, in a perfect world, I would agree
24 with you that there's probably no need to mention ports
25 and seaports because hopefully we would all agree that
131
1 that's an appropriate governmental purpose and we
2 shouldn't be in this argument.
3 The reality of it is, is that it is the pressures
4 that have been based upon or ports and seaports in
5 different ways is what has brought this, that's the
6 pressure that's brought us to this discussion today.
7 We need, as Commissioner Mills says, a single policy,
8 a single level playing field with regard to the way we
9 treat our ports and seaports. We should not run the risks
10 of having policy that is the result of 67 different
11 property appraisers. And that is the risk that we are
12 running now.
13 I have also noted that I -- I don't know who coined
14 the word, I think I heard Commissioner Barnett use it
15 earlier. I think that's part of the argument, is perhaps
16 we shouldn't constitutionalize the terms port and seaport.
17 And I've learned that they have already been
18 constitutionalized, indeed, in Article VII, Section 10, on
19 pledging credit with bonds, there's reference to airport
20 and port facilities. So the terms are already there.
21 CHAIRMAN DOUGLASS: Commissioner Smith.
22 COMMISSIONER SMITH: Thank you, Mr. Chairman. I want
23 to pose a question to Commissioner Mills because of all
24 the discussion I have heard so far, his was the most
25 persuasive to me until I heard Commissioner Hawkes'
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1 example.
2 I believe that trying to promote trade, especially
3 being from Miami, you talk about gateway to the Americas,
4 we are right there at the gate. And so -- but I don't
5 see, or please explain to me why you think a McDonald's or
6 a TGI Fridays or Smith Ice Cream Shop at the airport in
7 some way promotes trade.
8 CHAIRMAN DOUGLASS: Commissioner Mills.
9 COMMISSIONER MILLS: Mr. Chairman, there may be some
10 other people who have some direct remembrance of a couple
11 of these cases. The response to that is I think that's
12 already the law. That the courts have found that in the
13 location of a restaurant in an airport, if the underlying
14 ground is exempt -- and perhaps I should do a Frank
15 Morsani and call on Justice Kogan to talk about the case,
16 was it your opinion?
17 (Off-the-record comment by Commissioner Kogan.)
18 COMMISSIONER MILLS: As I recall, and there may be
19 somebody else that has a better recollection, but the
20 issue of public purpose for something such as a restaurant
21 depends on where it is located. And there has been
22 interpretations that if it is at an airport facility, the
23 absence of anyplace to buy food would be a problem in
24 international commerce, in other words, the existence of
25 certain types of functions.
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1 Now as I recall this case, and someone else may
2 recall it more specifically, that it said such functions
3 as a hotel at the airport was a public purpose. And
4 frankly when you talk about public purpose, in terms of
5 definitions, you go back to tourism. I don't mean to jump
6 too much, but the definition of public purpose as it
7 relates to tourism and the issuance of bonds goes all the
8 way to anything remotely close to Disney.
9 I mean, we have cases, those of you -- I think
10 Commissioner Nabors actually probably did the case that
11 said a Motel 6 that was close to Disney was a public
12 purpose because it helped promote tourism. So if what we
13 are talking about is what we have determined a public
14 purpose to be in this state for purposes of assisting
15 certain generally-accepted public purposes such as
16 tourism, it has been pretty broad. And Commissioner
17 Nabors may recall that case.
18 CHAIRMAN DOUGLASS: Commissioner Lowndes.
19 COMMISSIONER LOWNDES: And in part answer to
20 Commissioner Smith's question, I think that the point here
21 is that in Miami at the Miami Airport, if they lease out a
22 McDonald's, for example, that is immune from taxation. In
23 other words, it is county.
24 In Orlando, you have the land owned by the city but I
25 think it is a special district. But if Orlando leases out
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1 a McDonald's it is not immune from taxation. And this
2 simply would give the Legislature the authority to, if the
3 Legislature decided to, to even it up.
4 CHAIRMAN DOUGLASS: Is a bar a public purpose?
5 COMMISSIONER SCOTT: Depends on which airline you
6 fly.
7 CHAIRMAN DOUGLASS: Depends on which airline you fly.
8 (Laughter.)
9 CHAIRMAN DOUGLASS: As I understood his explanation,
10 we could claim that any motel was a public purpose whether
11 it was owned by anybody. I don't think that was what he
12 meant. All right. Commissioner Nabors.
13 COMMISSIONER NABORS: Commissioner Smith, I want to
14 ask a question to Commissioner Scott which goes to the
15 issue that you are concerned about.
16 Commissioner Scott, as I understand the status of the
17 law currently is is that for purposes of taxation there
18 are really two interests in governmental property. There
19 is the leasehold interest and then there is the fee
20 interest or the interest in the land itself which is
21 governmental.
22 There is also, as I understand it, each of those can
23 be taxed separately. As I understand the law currently is
24 is that as to the leasehold interest, the private
25 leasehold interest in governmental property, current law,
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1 general law allows if the lease is over a certain period
2 of time it's taxed as if, the leasehold interest is taxed
3 as if owned, and if it has a term of less than a certain
4 period of time, it is taxed at an intangible rate; is that
5 correct?
6 CHAIRMAN DOUGLASS: Commissioner Scott.
7 COMMISSIONER SCOTT: That's correct and it is not the
8 intent here to in any way change that. In other words,
9 the leasehold interest is still taxable either as an
10 intangible or whatever the current law is. It is the
11 underlying property that we are talking about.
12 COMMISSIONER NABORS: So the point is from the
13 constitutional standpoint this still preserves the right
14 of the Legislature, Florida Legislature, to tax the holder
15 of that leasehold either an ad valorem or intangible rate
16 depending upon their discretion.
17 CHAIRMAN DOUGLASS: We are on the amendment which is
18 to eliminate the words airport and seaport, as I
19 understand it. That's the, that's what we are on. We are
20 not on the main proposal. And you want to speak to the
21 amendment, Commissioner? I said I would recognize
22 Commissioner Evans-Jones unless you were going to answer a
23 question.
24 COMMISSIONER EVANS-JONES: Thank you, Mr. Chairman.
25 I am in favor of Commissioner Brochin's amendment and I
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1 wanted to ask this question. The Canaveral ruling was in
2 part based on the court's determination that special
3 districts is an independent special district and not part
4 of state government and therefore not immune from
5 taxation.
6 And the court stated, accordingly, we find that only
7 the state and those entities which are expressly
8 recognized in the Florida Constitution as performing a
9 function of the state comprise the state, and so forth.
10 So they said no rational basis exists for exempting
11 from ad valorem taxation on a commercial establishment
12 operated by the Cape Canaveral Port Authority property
13 where similar establishment located near but not on the
14 CPA property is not exempt.
15 So if we don't put, if we don't delete this, is this
16 going to overturn the Supreme Court's decision on this?
17 Is that what we are concerned about? And as you know, the
18 next bill that's coming up is going to try to level the
19 playing field so that the immunity is taken away from the
20 county as well so that we will have a perfectly even
21 playing field. And to me, people who are in business to
22 make money, and we are talking about a lot of money,
23 should have an even playing field.
24 So I just wonder what does this do to this decision?
25 You attorneys will have to help me out.
137
1 CHAIRMAN DOUGLASS: We'll start with Commissioner
2 Scott.
3 COMMISSIONER SCOTT: I may not be enough attorney to
4 hurt or help anymore, but let me just point out to you
5 that this, I forget the details of that case and it is
6 true that Commissioner Evans-Jones and Commissioner Hawkes
7 have a proposal that will be coming up that was not voted
8 favorably by the committee that it goes in really an
9 opposite direction but attempts to take away the county's
10 immunity.
11 But this points out, seaports, one of the reasons we
12 need to name ports and airports is that in a port, let's
13 just -- the people that load the cargo are private
14 companies, perhaps. People that operate the cranes, the
15 stevedores and I forget all the lingo, the port pilots
16 that take, all these people perform port functions. But
17 they are not performed by the government that owns it or
18 the entity that owns it.
19 So that's why we want to especially name them and we
20 just want to make clear ports and airports, and that's why
21 we oppose this amendment of Commissioner Brochin. And we
22 will have a chance to discuss the other proposal which
23 goes in kind of an opposite direction at that time.
24 But on this amendment, the committee, this was
25 brought up at the committee a number of times and
138
1 discussed and rediscussed and debated and whatever and we
2 felt that we should leave these words in.
3 CHAIRMAN DOUGLASS: All right. Now Commissioner
4 Riley.
5 COMMISSIONER RILEY: May I ask a question of
6 Commissioner Scott?
7 CHAIRMAN DOUGLASS: He yields.
8 COMMISSIONER RILEY: As it is written, I want to get
9 back to the Ruby Tuesday's at the airport because I
10 understand that real well as a commercial landlord. The
11 way it is written, airport purposes and seaport purposes
12 as defined by general law, does that mean then that the
13 Legislature could in fact define those purposes as
14 including your people that you were talking about, but not
15 including the retail stores and the restaurants that -- I
16 mean, let's face it, that's a great place to be if you
17 have got no place else to eat. So it is not bad real
18 estate.
19 COMMISSIONER SCOTT: Which is the reason --
20 CHAIRMAN DOUGLASS: Commissioner Scott.
21 COMMISSIONER SCOTT: -- that part of this proposal is
22 "as defined by general law" so that case-by-case
23 inequities if they exist or distinctions between functions
24 can be made by the Legislature. And that's why the
25 committee has structured this in this way.
139
1 COMMISSIONER RILEY: And the Legislature has
2 currently defined it to include those other retail type
3 businesses. As I understand it.
4 COMMISSIONER SCOTT: I don't think so, I'm not sure
5 about that, whatever they have done or haven't done. But
6 here is the point, this is a chance for us to get this out
7 of the Constitution and into the Legislature where we can
8 refine it. Also, where the fiscal impact, as Commissioner
9 Smith brought up, could be considered.
10 CHAIRMAN DOUGLASS: Another question?
11 COMMISSIONER MILLS: Would Commissioner Scott yield
12 for a question? In response to Commissioner Evans-Jones'
13 proposal and question, I understand there are two ways to
14 level the playing field. I just want to make clear that
15 everybody understands the distinction. This proposal to
16 level the playing field provides some exemptions for these
17 public purposes. The other way to level the playing field
18 is to raise taxes to all come to an even playing field;
19 isn't that correct?
20 COMMISSIONER SCOTT: I would say this, the other way
21 is to take away the county immunity for all the ports
22 which would be detrimental. In other words, it would be--
23 COMMISSIONER MILLS: It would be coming up.
24 COMMISSIONER SCOTT: It would be coming up. It would
25 be raising taxes and that's one of our concerns here is
140
1 they have got to compete internationally and interstate
2 with New Orleans, with other places. And believe me, time
3 and again we have had discussed in the Legislature at home
4 in Port Everglades, for example, in Miami about the
5 problems that they have competing.
6 That's why we want to make clear that they are being
7 treated equally. They will all be, regardless of whether
8 they are owned by a special district or a municipality or
9 a county they will all be basically created the same.
10 CHAIRMAN DOUGLASS: Commissioner Mathis.
11 COMMISSIONER MATHIS: Anything other than clearly
12 defining ports and airports as exempt doesn't level the
13 playing field, it cripples the state and puts us at a
14 competitive disadvantage. We are not competing amongst
15 one another, but currently right now we are competing
16 between whether a municipality owns an airport or whether
17 a county owns an airport.
18 And it is my contention that that shouldn't even
19 factor into the decision as to whether or not to construct
20 an airport or a port. That airports and ports serve this
21 state, build our competition internationally. And if some
22 little small coastal town wants to build a port and they
23 feel like there is a market, they should not have to
24 decide whether they want it to be a special district or
25 whether they want it to be county owned or whether they
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1 want it to be city owned because that port or that airport
2 has regional impact, not just countywide.
3 And so I suggest to you that this amendment cripples
4 our state and puts us at a competitive disadvantage
5 globally. And that is what we need as a state.
6 By clearly defining ports and airports, we move from
7 the discussion whether or not a county owns it, whether or
8 not a city owns it, whether or not a special district owns
9 it, and we move further toward the discussion of where
10 will it help Florida be competitive.
11 So I say let's stand -- let's let this state stand on
12 two legs and compete in the global market by keeping the
13 clear definition of ports and airports, our windows to
14 international commerce, open and to clearly define that
15 those functions that are part of airports and ports are to
16 be exempt.
17 CHAIRMAN DOUGLASS: All right. Commissioner
18 Evans-Jones you were up. Did you have anything further?
19 COMMISSIONER EVANS-JONES: I guess I was just asking,
20 I had been told that if we passed this we will wipe out 60
21 years of case law. I am not an attorney and I don't know
22 whether make that's a good idea or a bad idea.
23 CHAIRMAN DOUGLASS: I don't know that we will, but
24 the people that voted for it might. We are on the
25 amendment at the moment, not on the proposal. We are on
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1 Amendment No. 1. And we will now vote on Amendment No. 1
2 -- No. 2, excuse me, No. 1 was Commissioner Scott's. This
3 is Commissioner Brochin's Amendment No. 2 that's been
4 filed and you have another one after this, I understand.
5 COMMISSIONER BROCHIN: I'd like to close on this.
6 CHAIRMAN DOUGLASS: Beg your pardon?
7 COMMISSIONER BROCHIN: I'd like to close on it.
8 CHAIRMAN DOUGLASS: Absolutely, you can close. I
9 forgot you, you have been so quiet through all this.
10 COMMISSIONER BROCHIN: I opened and then I'll close.
11 I really want to emphasize that this amendment
12 probably has nothing to do with all the reasons that most
13 of the people said for or against. Let's be somewhat
14 intellectually honest about this. This amendment permits
15 the Legislature to exempt.
16 If you want to make a policy purpose that airports
17 and seaports are the economic engines, which again I don't
18 disagree, then change the word from "may" to "shall."
19 What this proposal was supposed to do was to say to the
20 Legislature, if it is owned by a governmental entity and
21 it is used for public purposes, Legislature, you may, you
22 may exempt it from taxation. And you may define what a
23 public purpose is.
24 I bring you this amendment in the spirit of the fact
25 that we are writing a Constitution and we are not trying
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1 to make public policy and legislate in 1998 that an
2 airport, a seaport, a hospital or any other public purpose
3 at this moment in time is appropriate for the
4 Constitution.
5 The reason I bring it is to say it is consistent with
6 the language of the Constitution by leveling the playing
7 field for municipalities and special taxing districts to
8 go to the Legislature and all this Constitution will say
9 is you have got two things; one, it is owned by a
10 governmental entity, and two, it is used for public
11 purposes.
12 You, the Legislature, can tell us if the airports and
13 the seaports are the economic engines of this state. You,
14 the Legislature, can carve out whether the McDonald's or
15 the cargo place is a public purpose. What we want to do
16 constitutionally is simply set the framework and in that
17 framework we say governmental entity and public purposes.
18 If it doesn't meet that, then it would be constitutionally
19 infirm. If it does meet that, then it is constitutionally
20 permissive.
21 If you read this carefully the way it is written,
22 airport and seaport are redundant, they don't need to be
23 in there, they know it. And I suggest that it comes out
24 in the spirit that we are trying to set the framework for
25 the next 20 years and not sort of dictate or send messages
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1 as to which of these particular public purposes may be
2 exempt.
3 CHAIRMAN DOUGLASS: All right. Having closed on the
4 amendment, open the machine and we will cast the vote.
5 (Vote taken and recorded electronically.)
6 CHAIRMAN DOUGLASS: Lock the machine and announce the
7 vote.
8 READING CLERK: Eight yeas, 22 nays, Mr. Chairman.
9 CHAIRMAN DOUGLASS: Now we have another amendment on
10 the table by Commissioner Brochin. Would you read it
11 please?
12 READING CLERK: By Commissioner Brochin, on Page 1,
13 Line 22, delete, and uses that are not -- and uses that
14 are incidental thereto.
15 COMMISSIONER BROCHIN: This will take less explaining
16 and probably go with the same success. Again, I would say
17 that what this amendment does is strike the words
18 "incidental uses thereto." And, again, I found it vague,
19 ambiguous language. If you are going to level the playing
20 field and allow a governmental entity who is doing it for
21 a public purpose to be exempt by the Legislature, so be
22 it, a concept I would support.
23 But someone has to explain then what incidental uses
24 thereto are and therefore what right or what guidance we
25 are putting in the Constitution for the Legislature to
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1 actually now permissively again exempt not only uses for
2 public purposes, but uses that are somehow, quote,
3 incidental, end quote, thereto, a term that I'm not
4 familiar with in legalese or constitutional structure in
5 terms of being a permissive tax structure that are related
6 or incidentally related thereto.
7 And therefore to make it a clean proposal, and one
8 that puts in a very nice sense what the Legislature can do
9 and determine I would suggest the words come out. And
10 that's what the amendment does.
11 CHAIRMAN DOUGLASS: The word what?
12 COMMISSIONER BROCHIN: The words "and uses that are
13 incidental thereto." Let me read it in whole, All
14 property owned by a governmental entity, and still, and
15 used for airport, seaport or public purposes as defined by
16 general law may be exempted from taxation.
17 I can't emphasize enough the word "may" in there.
18 And Commissioner Scott is right, if there was a consensus
19 at the Finance and Tax Committee meeting it was that the
20 Legislature should handle this. This is something that is
21 very appropriate for them to handle in terms of making a
22 decision.
23 And we were convinced that to make that decision we
24 had to give them the permissive language that essentially
25 dealt with the case law so they would have the permissive
146
1 language in the Constitution. That part I think is a good
2 idea.
3 The part I do object, like the airport and seaport,
4 is it should be a general permissive language with as
5 little criteria as possible, but criteria that is critical
6 to their analysis. And, again, that is that it is owned
7 by a governmental entity and it is used for public
8 purposes. When you, to borrow a term from yesterday, junk
9 up the Constitution with language like "uses incidental
10 thereto," I think it is the wrong thing to do and I think
11 it ought to be a lot clearer and simpler.
12 CHAIRMAN DOUGLASS: Commissioner -- which one of you
13 guys wants to go first? You do, all right. Commissioner
14 Scott, you seem to be ramroding this thing.
15 COMMISSIONER SCOTT: Well, and thanks to the
16 assignment you gave me as chairman of this committee, not
17 by volunteer, necessarily.
18 In any event, we need to have this in here because it
19 allows the flexibility that we need for the Legislature to
20 deal with specifics regarding any particular inequity, if
21 you take the point of view of Commissioner Evans-Jones.
22 The Black's Law Dictionary says an incidental use is
23 a use depending upon or pertaining to something else as
24 primary, something necessary pertaining to or depending
25 upon another which is principle.
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1 And I think that clearly gives the -- you know, it
2 does give authority, but that's the purpose here. We
3 don't want to be back here, or not be back but in two
4 years find out that we, somebody says that we didn't do
5 this to give enough authority to the Legislature. And
6 that's the whole purpose of it. And there may be -- I
7 will tell you if you sat through the 12 hours in committee
8 and plus all of the written and whatever --
9 CHAIRMAN DOUGLASS: I can't hear you.
10 COMMISSIONER SCOTT: You can go to any particular
11 thing and it is very complicated. And that's the purpose
12 here is that committees in the Legislature would have a
13 chance to sort out and handle whatever is necessary to
14 handle this and to make the level playing field. And
15 that's the purpose of the majority of the committee and
16 the people supporting this.
17 So I would ask you not to adopt Commissioner
18 Brochin's amendment and leave it as it is so that we
19 can -- that the Legislature can deal with this as
20 necessary. And that's the whole thing.
21 CHAIRMAN DOUGLASS: Commissioner Barkdull.
22 COMMISSIONER BARKDULL: A question for Commissioner
23 Scott please if he yields.
24 Commissioner Scott, we all relate to our localities
25 where we come from. Surrounding the Dade County Airport,
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1 which is government owned, are a tremendous amount of
2 rental companies, automobile rental companies that have
3 real property. There is no question that they are an
4 incidental use to that airport. Would they then be
5 permitted to be exempt from taxation?
6 COMMISSIONER SCOTT: I really don't have any idea. I
7 guess it would depend on --
8 COMMISSIONER BARKDULL: I'm hearing from Commissioner
9 Lowndes that he said that they are not owned. If that's
10 going to be the criteria that they must be owned, I think
11 this language needs to be cleared up a little bit.
12 COMMISSIONER SCOTT: What do you mean "owned," by the
13 government?
14 COMMISSIONER BARKDULL: Yeah. As I understand his
15 explanation in my right ear is that only property that's
16 owned by the government will be exempt. Therefore I don't
17 know why you need the incidental thereto because it is
18 already owned then. I thought the incidental thereto
19 related to the primary use as you defined it just a moment
20 ago by the government agency.
21 COMMISSIONER SCOTT: Commissioner Barkdull, this use,
22 it says, "uses incidental thereto." It has nothing to do
23 with other property. It is only the government property
24 that we are talking about to begin with. And I have no
25 idea about Dade County, but it would not affect property
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1 that's not owned by the government.
2 And then if it is a leasehold, as Commissioner Nabors
3 as our discourse explained, the leasehold would be taxable
4 either as an intangible or otherwise, depending on the
5 length of it. But this is not in any way, you know, to
6 expand anything beyond government property because that's
7 what it modifies.
8 COMMISSIONER BARKDULL: That's what I thought you
9 meant, but the definition you read to us just a minute ago
10 about incidental use was incident to the primary use. And
11 that's what concerns me.
12 COMMISSIONER SCOTT: But it is property that we are
13 talking about, use of the government-owned property. I
14 don't know why I read that. Somebody looked it up here so
15 it would give me something -- but the fact is we need the
16 discretion in the Legislature to do this. That's the
17 conclusion that we came to.
18 COMMISSIONER SUNDBERG: Mr. Chairman?
19 CHAIRMAN DOUGLASS: Commissioner Sundberg.
20 COMMISSIONER SUNDBERG: For a question.
21 Commissioner Scott, let me go back to Commissioner
22 Barkdull's hypothetical. Well I have two for you. Let's
23 take his first. National Car Rental doesn't own, let's
24 say -- and let's put it in a municipality because that's
25 what we are dealing with here.
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1 The Hialeah International Airport has car leasing
2 facilities around it. The property is owned by the City
3 of Hialeah, but is leased to National, Avis, whatever the
4 others are to provide rental cars for passengers utilizing
5 that airport.
6 Isn't the use of that property -- it is owned by the
7 City of Hialeah, it may be leased but it is owned by the
8 City of Hialeah, and it is used for a purpose incidental
9 to the operation of the airport.
10 The second hypothetical, let's go back, was it
11 Friday's, TGI Friday's or something? In the Hialeah
12 Airport terminal building, and it certainly is incidental
13 and surely the bar in there is incidental to the operation
14 of that airport because people have to steel themselves
15 before they get on those airplanes. And, hence, why is
16 that not incidental to an incidental use to the airport,
17 the public purpose there?
18 CHAIRMAN DOUGLASS: Commissioner Scott.
19 COMMISSIONER SCOTT: Mr. Chairman, to be honest with
20 you, we do not know -- I do not personally know but I
21 think maybe Commissioner Nabors could help us out on this.
22 This has never been, this question was not asked or in any
23 way brought up by anyone. So I would defer to
24 Commissioner Nabors.
25 COMMISSIONER SUNDBERG: But does it suggest the
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1 reason why Commissioner Brochin's amendment might be
2 appropriate?
3 COMMISSIONER SCOTT: Let's ask Commissioner Nabors.
4 COMMISSIONER SUNDBERG: Is Commissioner Brochin's
5 amendment appropriate?
6 COMMISSIONER NABORS: I am not voting for
7 Commissioner Brochin's amendment therefore it is obviously
8 not appropriate.
9 (Laughter.)
10 COMMISSIONER NABORS: Let me tell you why. What this
11 means to me is that if you had -- let me give you your
12 example of the rental car.
13 If the off-site rental car agency was on private
14 property, obviously, even though it is incidental, it
15 would still be fully taxable. Let's make sure everybody
16 understands that. But let's say that it is, that the
17 property is off site but it is owned by the airport
18 authority and it is leased to a rental car agency to do
19 off-site rental car uses.
20 The Legislature would have to make a determination as
21 to whether they thought that was incidental to the airport
22 or not. If it made that determination, what it would mean
23 is the fee simple, the fee simple, the government's
24 interest in that would not be taxable but the leasehold
25 interest would be taxable.
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1 It would be taxable either at -- current law it would
2 be taxable at the intangible rate but it could be taxed at
3 the ad valorem rate. It depends on what the Legislature
4 made the decision to do, but it is a separate estate that
5 would be taxable.
6 COMMISSIONER SUNDBERG: Commissioner --
7 CHAIRMAN DOUGLASS: Commissioner Sundberg.
8 COMMISSIONER SUNDBERG: -- Commissioner Nabors, you
9 are absolutely right on the current state of the law. My
10 problem is it says uses may be exempted and it doesn't
11 talk about the quality of title in the property. All it
12 says is so long as the property is owned by one of these
13 governmental entities, then those incidental uses can be
14 exempt.
15 And so as I say, I don't know why the quality or the
16 dignity of the title to that property, whether it is in
17 fee simple or a lease or for a term of years has anything
18 to do with this incidental use language.
19 COMMISSIONER NABORS: That could be the case today
20 under current language with immune property, too. The
21 Legislature could decide not to tax the leasehold
22 interest.
23 COMMISSIONER SUNDBERG: Absolutely.
24 COMMISSIONER NABORS: That's the case of the state of
25 the law now. That's always going to be a consequence.
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1 The Legislature -- when you and I were young and limber in
2 the '80s the Legislature used to tax these leasehold
3 interests at the ad valorem rate.
4 COMMISSIONER SUNDBERG: Yes, they did.
5 COMMISSIONER NABORS: Now they tax them basically if
6 they are below 100 years at the intangible rate. And so
7 the Legislature has always got the ability to make these
8 kind of choices and I would argue that this doesn't really
9 affect that ability. It's just the fact that it expands
10 it to cities -- I mean, to cities and special districts
11 just like counties have it now in the state.
12 CHAIRMAN DOUGLASS: All right. Commissioner Lowndes,
13 Commissioner Riley I believe was up first.
14 COMMISSIONER RILEY: I have a question for
15 Commissioner Nabors.
16 CHAIRMAN DOUGLASS: He yields.
17 COMMISSIONER RILEY: If the phrase in this "as
18 defined by general law" were after "incidental thereto,"
19 Then I would agree with you.
20 So my question is, as I read it, because it comes
21 after the general law phrase then general law is not going
22 to define what incidental is. And that concerns me. Now
23 I would be comfortable with it -- and of course I have a
24 great depth of knowledge, of course, that started on the
25 16th of June, so correct me if I'm wrong, but as I
154
1 understand it, the way it is written, it doesn't mean what
2 you are saying. Am I understanding it correctly?
3 So that if you were to take general law and put it
4 after incidental, then the Legislature could define what
5 incidental is. And if you don't, it means anything that
6 anybody wants it to mean.
7 COMMISSIONER NABORS: The only thing I can say in
8 terms of the record is it is the intent of everybody
9 involved is that the question of whether it is incidental
10 or not is also within the authority of the Legislature to
11 define.
12 CHAIRMAN DOUGLASS: I think, Commissioner Riley, the
13 Education Committee was giving you a grammar lesson. It
14 didn't have anything to do with the merits, necessarily.
15 Is that right, Commissioner Riley? You think
16 grammatically it doesn't say that?
17 COMMISSIONER RILEY: I don't know about grammar, but
18 I can tell you about in terms of what I understand the
19 purpose of this to do that it doesn't do what Commissioner
20 Nabors said it does. And so in that respect, as far as
21 the English part of it we better move it around or it is
22 not going to do that.
23 CHAIRMAN DOUGLASS: All right. Commissioner Lowndes.
24 COMMISSIONER LOWNDES: I had a better comment before
25 I heard Commissioner Riley.
155
1 CHAIRMAN DOUGLASS: Now it got to be a different one.
2 COMMISSIONER LOWNDES: That's right. I think
3 Commissioner Riley is probably right, it should really be
4 reversed because I think it would read better and be less
5 apt to be misinterpreted.
6 But I think the intention is -- I served long and
7 hard on this committee -- and the intention was to leave
8 these decisions up to the Legislature. And the reason the
9 term incidental uses was in there was so that the
10 Legislature could decide which incidental uses should be
11 exempt and which incidental uses should not be exempt.
12 Leaving the term in there doesn't determine that. It is
13 up to the Legislature to determine that. And that was the
14 intent.
15 CHAIRMAN DOUGLASS: All right. Now we are on
16 Commissioner Brochin's amendment. You have the right to
17 close. Commissioner Brochin, you are recognized to close.
18 COMMISSIONER BROCHIN: I just want to take this
19 opportunity to reiterate this point: The playing fields
20 we are talking about is this proposal, underlying proposal
21 is to allow municipalities and special districts to,
22 quote, get on a level playing field with the county who is
23 immune by case law, essentially. It is a good idea and I
24 would like to vote for that idea, but we still leave this
25 language that's mucking it up.
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1 Commissioner Evans-Jones is going to come forward
2 along with Commissioner Hawkes and they are going to talk
3 about leveling the playing field between all of now these
4 public entities that have an exemption, including now the
5 municipalities and the taxing district, to make them more
6 competitive with the neighbors who have a proprietary
7 interest. I happen to think that's a good idea.
8 And the reason Finance and Tax had so much trouble is
9 we couldn't marry those two ideas into acceptable language
10 because there is a lot a lot of money involved.
11 The reason I think these two amendments are good is
12 because it makes it constitutionally clean. And we should
13 just say in a general sense that if you are going to level
14 the playing feel for municipalities and special taxing
15 districts, good. You have our permission, through the
16 Constitution, to do so. Our requirements are simply it be
17 a governmental entity owning the property, municipality,
18 special district, county or otherwise, and it be for
19 public purposes, it be for public purposes.
20 You, now the Legislature, have the permission to do
21 that under our Constitution and you have the permission to
22 define public purposes and tailor it as narrow or as broad
23 as you want as long as it comes within the well-defined
24 case law limitations of what we all know to be a public
25 purpose. And it is for those reasons I offered this
157
1 amendment and the one prior to that.
2 CHAIRMAN DOUGLASS: All right. On Commissioner
3 Brochin's amendment, prepare to vote. Open the machine.
4 (Vote taken and recorded electronically.)
5 READING CLERK: Twelve yeas, 21 nays, Mr. Chairman.
6 CHAIRMAN DOUGLASS: The amendment fails. We are now
7 on the amended -- proposal as amended, I think is where we
8 are.
9 I had a question, Commissioner Scott. I haven't
10 heard this come up but I remember in '78 -- Commissioner
11 Barkdull correct me on this -- the real thing that kept
12 coming up in these discussions is what this did to the
13 Okaloosa Island Authority and what this did in -- Santa
14 Rosa was the one. And what this did to the -- go ahead.
15 COMMISSIONER BARKDULL: We have a paid expert from 20
16 years ago. Commissioner Barnett can explain all that,
17 that was her baby.
18 CHAIRMAN DOUGLASS: And then the other one that flew
19 by all the time was the racetrack.
20 COMMISSIONER BARKDULL: Well I wasn't going to raise
21 that issue.
22 CHAIRMAN DOUGLASS: Does that apply here? I didn't
23 see where it did, I was just wondering.
24 COMMISSIONER BARKDULL: They have limited it to
25 airports and seaports now.
158
1 CHAIRMAN DOUGLASS: It doesn't.
2 COMMISSIONER BARKDULL: Unless it is one of these
3 special taxing districts.
4 CHAIRMAN DOUGLASS: Do you want to present the
5 matter? Which one of you wants to -- we are now on, we
6 are moving the proposal, but we haven't concluded the
7 debate on the proposal. We have been debating the
8 amendments. Who wants to open? I'll recognize
9 Commissioner Hawkes since he wants to be recognized.
10 COMMISSIONER HAWKES: Well I'm not sure if I'm
11 opening in favor of the proposal, I am opening in favor of
12 good public policy.
13 First of all, Commissioners, I would submit to you
14 that we heard about bonding when we first came together
15 and we learned that I think it is in 2013 or 2017,
16 Commissioner Barkdull will correct me, the state's bonding
17 authority may expire. And we needed to do something so if
18 the Legislature wanted to issue bonds to buy
19 environmentally sensitive lands, they would have
20 sufficient time to engage in a good economic
21 decision-making process and issue those bonds for longer
22 if they wanted to.
23 We have heard debate today on whether or not we
24 should revamp Florida's initiative process because we had
25 a lot of people come forward and they told us some things
159
1 that were wrong with the initiative process and some
2 concerns that they had. And we understood those concerns
3 and we thought those were legitimate concerns.
4 And of course we have already discussed once today
5 sovereign immunity. I have met in about four or five
6 committee meetings on sovereign immunity and we heard
7 people come and tell us about sovereign immunity and where
8 they had problems. And even President Jennings stood up
9 and said, from a legislative perspective there is problems
10 with sovereign immunity. And we know that there are
11 problems in that area.
12 And then we had people come and we talked about
13 reapportionment commissions and we talked about all kinds
14 of issues. And on every one of them, no matter if you
15 were for the proposal or against the proposal, I would
16 submit that at least you knew the problem that was
17 attempting to be addressed.
18 In this case, in this situation, I would challenge
19 for someone to just illustrate where an airport or a
20 seaport or a municipality has been taxed in a situation
21 that you would find personally offensive where you think
22 public policy is being violated. And in reality, I don't
23 believe you will find that situation. Instead we hear
24 about how seaports are the, and airports are the engine of
25 our state's economy.
160
1 But their core activities are not taxed. What are
2 taxed is when they lease out to these private proprietary
3 interests. That's the only time they come on the tax
4 roll. And Commissioner Barkdull said he wasn't going to
5 mention the Speedway with a little bit of a smile. Why?
6 Because the Legislature tried and tried and tried and
7 tried to exempt the Speedway and they couldn't find a way
8 to exempt the Speedway.
9 Is the Speedway a great public policy or is the
10 Speedway a great economic interest that has some
11 opportunity to influence the Legislature? And I would
12 submit it was because the Speedway had the opportunity to
13 influence the Legislature, not because exempting the
14 speedway from ad valorem taxation would allow the Daytona
15 500 to continue because it is still going on. And even
16 though they have to pay property taxes, it is still going
17 on. It is still functioning.
18 You know, we had the private county club in
19 Tallahassee. We have had testimony before this commission
20 about the shopping center in Orlando, Commissioner Riley.
21 $150 million worth of property in Orlando, off the tax
22 roll, that competes exactly with private business,
23 100 percent, no difference. You could not walk on that
24 parking lot and see a difference except the ownership
25 happened to be in the county and therefore it was exempt.
161
1 And the municipalities came and said, We would like
2 to own shopping centers and lease them out without paying
3 property taxes, too. And I thought if I was a
4 municipality I would probably want to do that too. But
5 that doesn't make it right. What's right is when
6 government decides to let someone else use their property
7 then they ought to play by the same rules.
8 And this is someone engaging in a proprietary or
9 business function. The courts have talked about that.
10 They have talked about what is proprietary and what is
11 governmental. And so even if government were to let
12 someone else use their property for a governmental
13 purpose, it would still be exempt from taxation.
14 If we look at the proposal itself, we notice that
15 very early on in the proposal the first thing that this
16 constitutional proposal does is strike, "exclusively by
17 it."
18 If you go down just one sentence below the proposed
19 amendment, you'll see that such portions of property as
20 used predominantly for educational, literary, scientific,
21 religious, or charitable purposes may be exempted by
22 general law from taxation. And so what we do there is we
23 give a percentage tax break on property that is used
24 predominantly, more than 50 percent.
25 Well now on municipally-owned property if they use it
162
1 at all, any use by government, under the language of this
2 constitutional proposal, would exempt that property from
3 the tax rolls because there is no exclusive requirement.
4 There is no predominant requirement. The only requirement
5 is if it is used by the governmental entity.
6 So if the government used it 30 percent of the time,
7 and a private business used it 70 percent of the time, it
8 is off the tax roll. Well that's a pretty big exemption
9 in and of itself. And then we go on and we say we are
10 going to let the Legislature define public purpose. And
11 we all have great visions of what public purpose is but
12 the case law shows us what it has been in the past when
13 the Legislature has tried to do it.
14 SECTION G.
15 And we all have great visions of what public purpose
16 is, but the case law shows us what it's been in the past
17 when the Legislature has tried to do it. And I think that
18 if we just look at some of the current situations,
19 Commissioner Nabors thought that it would be good idea,
20 before the Legislature exempted any more items from the
21 sales tax that they do a single bill stating the public
22 purpose that is going to be achieved by creating a sales
23 tax exemption.
24 And that was based upon his experience and his
25 understanding of testimony of people that, in fact, the
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1 Legislature, perhaps, hasn't always had public policy as
2 the forefront of their decision-making process in creating
3 some of these exemptions, and it was felt that it would be
4 better if we made them focus on that and it was
5 identifiable so that we could hold them accountable. But
6 of course there's no accountability in this proposal.
7 Also Floridians value their public records rights,
8 and so we say that the Legislature, because we thought
9 that the Legislature might be exempting too many records
10 from public records, so we said a single bill, no more
11 sweeping public records exemptions, we want single bills
12 if you are going to do a public records exemption.
13 We thought the Legislature might be creating too many
14 trust funds, so we said a single bill on trust funds. So
15 these issues are much more protected than what we are
16 proposing here where we are allowing the Legislature to
17 take money away from local communities, because this isn't
18 the Legislature saying, We'll take less money, this is the
19 Legislature saying that your local community will take
20 less money.
21 I say that in leading up to the proposal that follows
22 is the proposal by Commissioner Evans-Jones and myself,
23 and it truly does level the playing field. It doesn't
24 just level the playing field between municipalities and
25 counties because what it does, it makes counties play by
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1 the same rules that municipalities have to play in the
2 current law. It levels the playing field between
3 government and the private sector.
4 It says, if you are going to the engage in the
5 activities of the private sector and compete with the
6 private sector, then you are going to compete all the way
7 and you are going to carry the same burdens that the
8 private sector carries, as well as some of the same profit
9 and benefits that the private sector carries.
10 We could have offered an amendment, I suppose,
11 striking everything after the enacting clause and debated
12 our proposal first, but we didn't do that. So I would
13 submit that you really have three options. One, you can
14 vote and make the folks that are watching pleased that
15 they now have a lot of exemptions off of the tax roll
16 without anyone testifying or giving us evidence of where
17 the abuses occurred, or two, you could truly level the
18 playing field by voting in favor of Commissioner
19 Evans-Jones' proposal and my proposal.
20 Or three, you can leave the status quo as it is and
21 vote no on both. Because, again, I would submit that the
22 only problem that we have heard about was that the playing
23 field, perhaps, wasn't level. And this, this doesn't
24 really make it level either. This might make it level
25 between municipalities and counties in some circumstances,
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1 but it doesn't level the playing field between private
2 business and counties.
3 And the other place where it's not quite level, if
4 you could think about it, if the City of St. Petersburg
5 decides to buy property outside of their city limits under
6 this proposal, they can take that property off of the tax
7 rolls of Pinellas County. And the people who elect that
8 city commission have no, the people in the county don't
9 elect the city commissioners. So they have -- there's no
10 accountability and property has been taken off.
11 So I would submit that the current system has a level
12 playing field now, because at least if your county
13 purchases property that you don't know that they ought to
14 be purchasing and takes it off of the case roll, at least
15 you as a citizen have a right to vote who the county
16 commissioners are that you are losing ad valorem tax to.
17 But I would submit, I would ask you to please ask
18 yourself where the problem is and to please vote against
19 this proposal; it is not good public policy. Thank you.
20 CHAIRMAN DOUGLASS: There is an amendment on the
21 table by Commissioner Lowndes. Would you read the
22 amendment, please?
23 READING CLERK: By Commissioner Lowndes, on Page 1,
24 Line 22, delete and insert, As defined by general law,
25 Line 23 after taxation, As defined by general law.
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1 CHAIRMAN DOUGLASS: You are really just having the
2 one page, not both pages; is that right?
3 COMMISSIONER LOWNDES: Yes, just the one page.
4 CHAIRMAN DOUGLASS: So, tear the back page off.
5 COMMISSIONER LOWNDES: Right. This is a not very
6 artful effort on --
7 CHAIRMAN DOUGLASS: Well, I thought it looked quite
8 arty, I can't read it.
9 COMMISSIONER LOWNDES: That too. But it's not a very
10 artful effort to clarify the problem which I think was
11 inherent in the drafting of the main amendment. And the
12 intent of the committee, I believe, and the intent of the
13 drafters of this was that the Legislature would define
14 those incidental uses that would be exempt. And maybe
15 this language is not the best language to do it, but I
16 think it gets on record that intent, and hopefully there
17 are a lot of bright people on the Style and Drafting
18 Committee that could put it together a little bit better
19 than that. But I would move the amendment.
20 CHAIRMAN DOUGLASS: Commissioner Scott.
21 COMMISSIONER SCOTT: Since Commissioner Lowndes is on
22 Style and Drafting, I was just talking to him. One of the
23 reasons that we didn't put, As defined by general law, at
24 the end of that sentence, is because it looks like it
25 might only modify, uses incidental thereto, and not
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1 modify, seaports, airport, and public purposes.
2 So, I would ask this, since he's on the committee, if
3 maybe, if he would consider withdrawing this with the
4 representation that the intent here is to have, As defined
5 by general law, modify the whole sentence, but there is no
6 way to do it without it looking like that at the
7 committee. I had the staff trying to do this. Otherwise
8 Style and Drafting will come back with it with the clear
9 intent that all of this is to be as defined by general
10 law, including the uses incidental thereto, the seaport,
11 airport and the public purpose. And I am not -- you could
12 write it twice, I suppose, you could just add it in twice,
13 but if you don't -- I think if we make the clear statement
14 of intent, then I would ask --
15 CHAIRMAN DOUGLASS: I think if Style and Drafting is
16 still going to deal with it that way, you probably ought
17 to drop the amendment and then Style and Drafting would
18 have the latitude to make it clear what you said.
19 COMMISSIONER SCOTT: Okay. Then, we would have no
20 objection to the amendment with the understanding that we
21 would --
22 CHAIRMAN DOUGLASS: That's right, it would then be
23 clear that Style and Drafting were charged with making
24 that --
25 COMMISSIONER SCOTT: We would not object to the
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1 amendment then.
2 CHAIRMAN DOUGLASS: Is that agreeable to you,
3 Commissioner Riley? All in favor of the amendment, say
4 yea. Opposed?
5 (Verbal vote taken.)
6 CHAIRMAN DOUGLASS: The amendment carries. We are
7 now back on the main proposal as amended. Commissioner
8 Scott, you are recognized. Or do you want to be
9 recognized now, or do you want Commissioner Evans-Jones?
10 Commissioner, you may be recognized.
11 COMMISSIONER EVANS-JONES: Thank you, Mr. Chairman.
12 I would like to speak against the bill. You have on your
13 desk a white letter, white paper, from Tom Drage
14 (phonetic), representing the property appraisers. There
15 are also several editorials that are on there. And I
16 talked to Rich Crowdy, the Orange County property
17 appraiser, yesterday and he was saying, for instance,
18 Commissioner Mills was saying that we would have to pay
19 more taxes.
20 But what you are going to do if you pass this
21 proposal, in Orange County alone, you would remove 300
22 properties valued at $144,999,606 from the tax roll. And
23 based upon the current millage rates, exclusion of these
24 properties would cost Orange County government $766,888,
25 Orange County schools would lose $1,316,116, and the City
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1 of Orlando would lose $113,956 in tax revenue.
2 And Rob Turner has said that in Hillsborough County,
3 you would lose 5.5 million annually in ad valorem revenue.
4 William Marcum has said in a letter to us that government
5 property occupied by for-profit corporations should be
6 taxed in the same manner of fairness to those businesses
7 which are forced to compete with tenants of public bodies
8 who enjoy, even then, a competitive advantage of
9 approximately 15 percent of gross revenues because of
10 their location.
11 I don't think that they should be granted this
12 immunity, I think that it's a dangerous precedent.
13 Mr. Drage has said that you would be given -- you would be
14 allowing the seaports and the airports to have a lot more
15 exemptions than they have today and that that probably
16 would be very dangerous. You need to have it in the
17 Constitution and not really allow the Legislature to just
18 accept anybody and everybody for anything.
19 CHAIRMAN DOUGLASS: Commissioner Riley.
20 COMMISSIONER RILEY: I'm looking at the headline that
21 says, Beware, The Unfair Tax Break. And I'm very
22 uncomfortable with a county in a state that gets tax
23 breaks that give unfair competition to county and state
24 against private business. However, if they are going to
25 have that, I think that the municipality should have that
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1 equally unfair tax break.
2 So, in that respect, I support this proposal. I
3 think what we have done, and I think that with the next
4 proposal also we can make it that we don't make economic
5 development more difficult in the State of Florida, but
6 hopefully make it better. I agree with Commissioner Scott
7 and the other people, Commissioner Henderson, that have
8 spoken about bringing businesses into the State of
9 Florida.
10 And in areas where counties, and where the State and
11 where municipalities have an opportunity to bring business
12 in and to do that, need tax breaks, I think the
13 Legislature ought to have the option of doing that. And I
14 think what we have done with this, since we have added all
15 of the phrases and additions, I think we have done that.
16 And I think in the end we will have done hopefully more
17 than just level the playing field between state, county,
18 and municipalities, but made sure that we have a level
19 playing field between Alabama, and Georgia, and North and
20 South Carolina and Florida.
21 We cannot do anything, and certainly in our
22 Constitution, that's going to hinder economic development
23 in the state. And I think this helps economic development
24 in the state, and yet allows the Legislature to
25 judiciously hand out that exemption and not just have
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1 everybody get it, but to make sure that it does what it's
2 supposed to do. So I support the proposal now.
3 CHAIRMAN DOUGLASS: Commissioner Lowndes.
4 COMMISSIONER LOWNDES: I would like to rise in
5 support of the proposal also. And notwithstanding the
6 eloquence of Commissioner Hawkes, I think the Legislature
7 is the proper body to determine public policy. You know,
8 in Orlando, which I'm probably more familiar with than
9 most places, we have a very important airport. And it is
10 probably the most important single institution for the
11 economy of Orlando. And perhaps I'm lucky that Mr. Corr
12 is not here because the Disney people might argue that
13 point.
14 But in any event, it is a very important airport.
15 And the Legislature who sets public policy should be in a
16 position to decide whether the hotel at the airport is
17 important to the proper operation of the airport, whether
18 it is the -- of public purpose.
19 As things exist now, and the reason for all of the
20 kind of attention and problems over this issue, there is
21 the contest between the county tax appraisers and the
22 people who operate airports and the people who operate
23 seaports. The county tax appraisers are doing what they
24 should be doing, they are looking for places to collect
25 more taxes and they can't get enough to satisfy the needs
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1 of local government out of the private sector, so they are
2 going after the public sector.
3 And the reason that we had so many people up here
4 talking to us from so many different places was because
5 governments are trying to tax governments. And this
6 amendment gives the Legislature the right to be the
7 referee in that argument rather than the courts because
8 you are leaving it to the Legislature to set the public
9 policy of the state and not the courts. And I think
10 that's what this proposal does. And I would urge
11 everybody to vote for it. Thank you.
12 CHAIRMAN DOUGLASS: Commissioner Brochin.
13 COMMISSIONER BROCHIN: I rise in support of the
14 amendment or proposal, although I'm going to do it holding
15 my nose. The reason I think it is a pretty good idea is
16 because of its underlying policy, and its underlying
17 policy is that counties, municipalities, special taxing
18 districts are all the creatures of the Legislature; and
19 hence, the Legislature is ultimately responsible for their
20 operation.
21 And therefore, I think it should be constitutionally
22 permissible for that very same Legislature who is
23 responsible for these various entities to have the
24 constitutional authority, if you will, to exempt or not
25 exempt those particular entities and their particular
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1 property. That's why I think it makes a good idea from a
2 constitutional sense.
3 I also think the idea brought by Commissioner --
4 Commissioners Hawkes and Evans-Jones is also a very good
5 idea. And I was hopeful that there would be some way to
6 make these two ideas work. So, I think we ought to vote
7 for this. I think we ought to pass it to Style and
8 Drafting, and maybe what I need to do is become a lobbyist
9 in that respect and lobby the Style and Drafting and see
10 what we could do to make the language appropriate.
11 But I didn't mean to be disruptive in terms of the
12 process and language because I think underlying all of
13 this is a very good thought. And, again, it's not so much
14 leveling the playing field, but allowing the Legislature
15 who has all of these constitutionally and
16 statutorily-created entities, to finance it, exempt it, as
17 it sees permitted and as it defines by general law. And
18 for those reasons, I'll vote in favor of this.
19 CHAIRMAN DOUGLASS: Commissioner Connor.
20 COMMISSIONER CONNOR: I would like to make inquiry of
21 Commissioner Brochin, or the sponsor, whomever,
22 Commissioner Scott, and here's my concern. I like the
23 fact that the Legislature, the most accountable branch of
24 government, would make the determinations about who gets
25 the benefit of the exemptions, I think that's appropriate.
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1 Let me tell you what my concern is and it arose out of
2 Commissioner Riley's argument when she said it's unfair to
3 the private businessperson when government gets the
4 benefit of this kind of exemption, and it creates a
5 competitive advantage for government and those who are
6 with government in the competition against the private
7 businessperson.
8 And then Commissioner Riley said, You are right, it
9 is unfair, but I think to the extent it confers an unfair
10 advantage, municipalities ought to have that same unfair
11 advantage. Now, what that tells me is that you are lining
12 up more players against the private businessperson with an
13 unfair advantage than you have before. I'm not really
14 worried about protecting government here, I'm more worried
15 about protecting the rights of individual citizens,
16 protecting their ability to make a living.
17 Now, maybe I misunderstand that, but if what this
18 means is we have more, we have more players augmented by
19 an advantage that accrues only to government lined up
20 against private business people who don't compete with
21 that same advantage, I'm inclined to vote against it, even
22 though the Legislature might determine who gets the
23 benefit of exemptions. So, that's my concern and I
24 welcome any clarification on that.
25 CHAIRMAN DOUGLASS: Commissioner Riley. Do you still
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1 have the floor, Commissioner Brochin? You sat down,
2 didn't you? Commissioner Riley.
3 COMMISSIONER RILEY: I just wanted to respond to
4 that, since you referenced what I had said. And
5 hopefully, I also said that I was supporting the proposal.
6 And I am the person who builds that shopping center and I
7 am the representative of private business who builds
8 commercial and develops. And the reason I now support it
9 is because I don't want it to be just open, and opening it
10 to more people, I would agree with you, I don't think that
11 this proposal, and Commissioner Hawkes' proposal cannot
12 both be supported.
13 I think that we make it equal and then we make sure
14 that the Legislature understands the reasons why those
15 exemptions should be given and that they are not just
16 openly given to anybody for any reason. So, that -- did I
17 answer your question or clarify? No. Did I convince you?
18 CHAIRMAN DOUGLASS: Commissioner Brochin.
19 COMMISSIONER BROCHIN: I just wanted to respond in a
20 sense to what Commissioner Connor was saying. I think you
21 framed it perfectly clear and well. I think you
22 understand it perfectly that we will be adding another
23 list on that public playing field. That's why I was
24 trying to make the distinction of which playing field you
25 are talking about. Right now we are talking about an
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1 intra-governmental playing field which is not level, this
2 will level the intra-governmental playing field.
3 They are going to talk about trying to level the
4 inter-governmental playing field, that's the playing field
5 versus all of these governmental entities, no matter how
6 they are constructed, versus the private people the
7 property appraisers brought forward. I think you framed
8 it right and I think that, in essence, is the issue that
9 faces us, and how we come out on it, we are groveling with
10 this.
11 But right now, our Committee on Finance and Tax
12 supported the one that's before you and opposed the one
13 that Commissioner Evans-Jones is going to propose. But I
14 think you framed it earlier right in terms of the way it's
15 working.
16 COMMISSIONER CONNOR: If I may just follow-up, an
17 inquiry on that? Okay, if you take care of any disparity
18 between governmental entities, what happens -- is there
19 a -- is there a vehicle for taking care of the private
20 citizens or the private businessperson that is going to
21 mitigate the impact of bringing more people with greater
22 advantage against these private business folks? Is
23 there -- have you got the silver bullet for that or not?
24 I mean, that's -- in other words, we level that
25 intra-governmental playing field, what about the
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1 businessperson?
2 COMMISSIONER LOWNDES: Let me try to answer a little
3 bit about that. To some extent, in my opinion, where
4 that's settled, it really is settled in the Legislature.
5 For example, in Orlando, the airport owns really two
6 airports, the executive airport and the one south of town
7 at the International Airport.
8 At the executive airport, they had a lot of land out
9 there that they weren't using for anything, so they built
10 shopping centers on it, or leased land to people who built
11 shopping centers. Those have been on the tax rolls right
12 along, and nobody has suggested that that was a public
13 purpose or incidental to the operation of the airport, it
14 was just the use of excess land.
15 On the other hand, they have a hotel on the airport,
16 which the tax assessor wants to tax, and the question
17 really, in my view, that the Legislature would have to
18 decide is, number one, is that hotel really competitive to
19 the hotels outside of the airport since the hotel there is
20 really serving the people who pass through the airport as
21 opposed to the people leaving the airport.
22 But the other shops and whatnot in the airport, you
23 have to decide whether they are really competitive. And
24 my sense is, in the final analysis, the balance of that is
25 going to have to be in the Legislature, which they think
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1 is the more important public interest.
2 CHAIRMAN DOUGLASS: Commissioner Connor.
3 COMMISSIONER CONNOR: My concern is not whether or
4 not Hyatt can get that kind of relief in the Legislature,
5 my concern really is whether or not the guy who owns
6 Blimpies or, you know, a souvenir shop or something like
7 that can. And I have real questions about that.
8 COMMISSIONER LOWNDES: Of course, the question really
9 is whether or not there's really a competitive advantage
10 also because if somebody has a souvenir shop inside the
11 airport, probably he's paying as much rent in relationship
12 to his location as to the guy who has a souvenir shop
13 outside of the airport, it's simply that the airport is
14 getting the advantage of that rent and not the taxing
15 authority.
16 CHAIRMAN DOUGLASS: Commissioner Scott.
17 COMMISSIONER SCOTT: Just briefly, you know, in favor
18 of the proposal. What we are talking about here is
19 government taxing government. And I was talking to
20 someone about, Well, what happened here? Well, if
21 government gets taxed, then, they have got to, I suppose,
22 pay themselves, and they have also got to pay whatever
23 else, and then they have got the tax more.
24 So, the average person out there, you know, this is
25 what you have to get to a balance of it. And that's why,
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1 the way to do it, the only reason this is here, unlike
2 some of the other proposals we have, the only reason that
3 it's here is because the courts have said, the
4 Constitution prohibits the Legislature from dealing with
5 it, it's just that -- it's basically that simple.
6 It's not a simple issue. And that's all -- what we
7 are saying is, Let them deal with it. And in e process,
8 don't take away the immunity of counties, states, and
9 school boards in the process, because that's the direction
10 that the other proposal went and that's where the
11 committee came down.
12 So I think this is the best proposal and the best
13 direction for us. It does leave the Legislature
14 discretion, but at least, you know, that they will be able
15 to deal with this whole question of private versus public,
16 and this makes it a level playing field.
17 CHAIRMAN DOUGLASS: Commissioner Brochin.
18 COMMISSIONER BROCHIN: Yes, Commissioner Connor, I
19 would just, in direct response, I would urge you to vote
20 in favor of this proposal to allow the playing field to be
21 leveled intra-governmental. And then let's hear the
22 debate on the following proposal, and perhaps there is a
23 way to make the two married. But that's what I would
24 suggest because the next time it comes around, if we are
25 not satisfied and I'm still going to listen, we can take
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1 another shot at it. That's what I'm going to do, and
2 that's the reason I'm going to do it.
3 COMMISSIONER CONNOR: I'll do it with this
4 understanding, and that is, where government taxes
5 government, the burden ultimately falls upon the taxpayer.
6 And that's another concern. I mean, those are individuals
7 who ultimately wind up making that compensation.
8 But I do eagerly await seeing how the businessperson
9 gets relief and votes for it as I have with all, all of
10 those I have voted for, saying that when it comes up on
11 the next round, I'm going to apply a heightened scrutiny
12 standard for review on whether or not I will vote for it
13 ultimately.
14 CHAIRMAN DOUGLASS: Anybody want to close or do you
15 need to close? Okay. All right, Commissioner Anthony
16 wants to close. You may close.
17 COMMISSIONER ANTHONY: Thank you for your
18 consideration and favorable support of this proposal.
19 CHAIRMAN DOUGLASS: Great speech. Vote.
20 (Vote taken and recorded electronically.)
21 CHAIRMAN DOUGLASS: Announce the vote. Lock the
22 machine and announce the vote.
23 READING CLERK: Twenty-eight yeas, 4 nays,
24 Mr. Chairman.
25 CHAIRMAN DOUGLASS: All right. Move to the next
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1 item. I think we are ready, I believe I've been told, we
2 are ready to go back to 138 and 89, which is the second
3 item on the special order calendar. Committee Substitute
4 for Proposals 138 and 89 by the Committee on Education,
5 and Commissioners Nabors and Riley relating to the
6 Lottery.
7 COMMISSIONER LANGLEY: Mr. Chairman.
8 CHAIRMAN DOUGLASS: Yes, Commissioner Langley.
9 COMMISSIONER LANGLEY: For the benefit of all of us,
10 why don't we go on and do this other tax exemption right
11 behind this one while everybody has got it fresh on their
12 minds.
13 CHAIRMAN DOUGLASS: You are right, we'll do that one.
14 It's tax day, I can tell by the large gallery we have.
15 The next item on the tax proposal is -- now, we have done
16 all but Proposal 41 by Commissioner Mathis. We have done
17 the two committee substitutes and now we are on
18 committee -- I mean, on Proposal 41 by Commissioner
19 Mathis.
20 COMMISSIONER MATHIS: No.
21 COMMISSIONER BARKDULL: Mr. Chairman.
22 CHAIRMAN DOUGLASS: Yes.
23 COMMISSIONER BARKDULL: No. Have we done Committee
24 Substitute for Proposals 106 and 137 by Hawkes and
25 Evans-Jones?
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1 CHAIRMAN DOUGLASS: I thought I called it, but they
2 say I haven't. Okay, we will do that one. I will do them
3 all. Would you read it, please?
4 READING CLERK: Committee Substitute for Proposals
5 106 and 137, Article VII, Section 3(a), the Florida
6 Constitution; providing a tax exemption for certain
7 property owned by any governmental entity, providing that
8 certain property owned by a governmental entity may be
9 taxable, as provided by general law, providing that no
10 governmental entity shall have immunity from taxation
11 under certain conditions.
12 CHAIRMAN DOUGLASS: All right. Commissioners
13 Evans-Jones or Brochin or Hawkes. Excuse me, Commissioner
14 Hawkes, would you like to? You are recognized.
15 COMMISSIONER HAWKES: Mr. Chairman, I believe that we
16 have filed an, and Commissioner Evans-Jones and I have
17 filed an amendment. But I can talk about the proposal,
18 because it's really very simple, ladies and gentlemen,
19 this truly levels the playing field. What this says is
20 that no governmental entity is going to be immune.
21 And if you really want to allow the Legislature to
22 make the exemptions, take away the immunity and let the
23 Legislature have a public policy debate and I would submit
24 that if you want to -- if you really want to achieve good
25 public policy, put the requirements in there like Mr.
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1 Nabors proposed on the tax, the sales tax, and like we do
2 on some other things where they have to do a single bill
3 and they have to state the public policy so it's not in
4 the middle of a train, it's not in the middle of the
5 night, and it's something that is debated that the public
6 knows about and is in the open, and then we can exempt
7 that property from ad valorem tax that we think is
8 appropriate.
9 Because I would remind you, you have to remember that
10 the only property that we are talking about is property
11 that is owned by a governmental entity but used by a
12 private sector, individual for-profit goals. That is the
13 only profit that's ever placed on the tax rolls. We are
14 never talking about government taxing government when
15 government is doing functions. Every one of these leases
16 that comes out of the person leasing the property paying
17 the ad valorem taxes that are due.
18 And again, I would remind you, we haven't seen the
19 horror case where someone is getting taxed and we really
20 think they ought not. So, if you think the Legislature
21 ought to have the authority to look at each of these
22 situations and decide, vote in favor of this, make it so
23 that nobody is immune.
24 When we go to Style and Drafting, we can make it so
25 that the Legislature passes out, one at a time with a
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1 public policy statement so that we are really getting the
2 public policy debate that the commission has indicated
3 that they wanted and we can move forward to establishing
4 good public policy for the people of the State of Florida.
5 And the amendment merely clarifies that, Mr. Chairman.
6 CHAIRMAN DOUGLASS: We have three amendments on the
7 table. Would you read Amendment No. 1, please?
8 READING CLERK: By Commissioner Butterworth, on Page
9 1, Lines 21 and 22, delete, such governmental entity, and
10 insert on Line 22, "before" for "it".
11 CHAIRMAN DOUGLASS: Commissioner Connor, could you
12 and Commissioner Scott afford Commissioner Butterworth the
13 right to be seen?
14 COMMISSIONER BUTTERWORTH: Thank you, Mr. Chairman.
15 I have no problem with the Hawkes' amendment going first.
16 It probably should go first. That's probably amendment
17 number three.
18 CHAIRMAN DOUGLASS: Okay. We had number one, which
19 was the one she read.
20 COMMISSIONER BUTTERWORTH: Okay. That would be fine.
21 I just tried to make it very, very simple, by allowing all
22 governmental entities that are being used by government to
23 not be taxed, and I just took out the, in the first
24 amendment, I will read, All property owned by the state, a
25 county, a school district, municipality, a special
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1 district or any other governmental entity and used by it
2 for governmental or public purposes shall be exempt from
3 taxation. I think that's very simple.
4 CHAIRMAN DOUGLASS: All right. You have three
5 amendments up here. Are they all yours?
6 COMMISSIONER BUTTERWORTH: Mr. Chairman, I have two
7 of them. They really should be read together, I would
8 assume. It takes out the last sentence which is
9 underlined on Subsection A.
10 CHAIRMAN DOUGLASS: All right. We are going to read
11 your first one, Commissioner Butterworth, and then we'll
12 move that. Now, let's read his first one. If you would
13 listen, and this is the way they have got them in order up
14 here. This is your first amendment, they are going to
15 read it now. This is amendment number one.
16 READING CLERK: By Commissioner Butterworth, on Page
17 1, Lines 21 and 22, delete, such governmental entity, and
18 insert on Line 22, "before" for "it".
19 CHAIRMAN DOUGLASS: All right. That's number one.
20 And then you are telling us that you need them both
21 together?
22 COMMISSIONER BUTTERWORTH: Yes.
23 CHAIRMAN DOUGLASS: All right. You want to combine
24 them as one amendment. Then read No. 2.
25 READING CLERK: By Commissioner Butterworth, on Page
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1 1, Lines 23 through 27, delete everything underlined.
2 CHAIRMAN DOUGLASS: Now, Commissioner Butterworth, if
3 I can get order, we seem to be underwhelming our
4 membership with this today, but I had to vote on it last.
5 I'm not sure to go forward.
6 COMMISSIONER BUTTERWORTH: But it will say, Section
7 3, Subsection A, will now read, All property owned by a
8 state, a county, a school district, a municipality, a
9 special district or any other governmental entity and used
10 exclusively by it for governmental or public purposes
11 shall be exempt from taxation.
12 And then the rest of that particular paragraph will
13 then be deleted. So, what we are taking out is such
14 "governmental entity," so it's not used exclusively with
15 such governmental entity. And well, I should probably
16 write the whole paragraph over again, it would be easier.
17 CHAIRMAN DOUGLASS: Commissioner Scott has a
18 question.
19 COMMISSIONER SCOTT: Commissioner Butterworth, what
20 is the purpose here of this?
21 COMMISSIONER BUTTERWORTH: This really levels the
22 playing field, that's what you guys wanted to do.
23 COMMISSIONER SCOTT: Sort of like those bombs in
24 Kuwait, levels the playing field?
25 COMMISSIONER BUTTERWORTH: No, I think it does what
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1 you want it to do. I was just trying to help you out,
2 Senator.
3 CHAIRMAN DOUGLASS: Commissioner Scott.
4 COMMISSIONER SCOTT: Your fax machine wasn't used up
5 enough on Commissioner Rundle, you are going to hear from
6 our home county. Seriously, what is the purpose of it?
7 COMMISSIONER BUTTERWORTH: The purpose would be,
8 it'll read, it will say, All properties owned by a state,
9 a county, a school district, municipality, a special
10 district, or any other governmental entity and used
11 exclusively by it for governmental or public purposes
12 shall be exempt from taxation, period.
13 So, if you own property as one of those entities and
14 you use it for a governmental purpose, you are exempt.
15 CHAIRMAN DOUGLASS: Commissioner Henderson, do you
16 want to be recognized for a question?
17 COMMISSIONER HENDERSON: Thank you, Mr. Chairman.
18 Yes, sir. Commissioner Butterworth, help me out here.
19 I -- are you familiar with an entity called the Reedy
20 Creek Improvement District.
21 CHAIRMAN DOUGLASS: Oh yes, the Magic Kingdom.
22 COMMISSIONER BUTTERWORTH: Is that a governmental
23 entity?
24 COMMISSIONER HENDERSON: I am asking, are you
25 familiar with Reedy Creek?
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1 CHAIRMAN DOUGLASS: I am very familiar with it.
2 COMMISSIONER HENDERSON: And is that not a
3 governmental entity?
4 COMMISSIONER BUTTERWORTH: I believe it is.
5 COMMISSIONER HENDERSON: And do you believe that
6 there's a public purpose served by it?
7 COMMISSIONER BUTTERWORTH: I certainly do not.
8 COMMISSIONER HENDERSON: You don't think so?
9 COMMISSIONER BUTTERWORTH: No, I do not.
10 COMMISSIONER HENDERSON: Would you -- it occurs to me
11 that I think there is an argument that perhaps there is a
12 public purpose associated with that, and in fact, that
13 what this does is create an incredible opening of the
14 Pandora's box for all kinds of things to come off of the
15 tax roll.
16 COMMISSIONER BUTTERWORTH: Well, I mean, somebody
17 wanted to level the playing field, I was really leveling
18 the playing field for them.
19 COMMISSIONER HENDERSON: This sounds like carpet
20 bombing.
21 COMMISSIONER BUTTERWORTH: No, I don't mind taking
22 some things out. We can take special district out. We
23 can take a lot of things out of here, but I voted in favor
24 of the last one. I wanted to level your playing field, I
25 wanted to see who is awake here, level it completely.
189
1 CHAIRMAN DOUGLASS: Commissioner Hawkes, are you
2 trying to be recognized or are you just lounging there?
3 All right. I can tell that Commissioner Scott is not
4 lounging, he wants to be recognized.
5 COMMISSIONER BUTTERWORTH: On the good order of the
6 commission, I'll withdraw these amendments.
7 CHAIRMAN DOUGLASS: I was kind of enjoying that.
8 COMMISSIONER BUTTERWORTH: I was glad somebody was
9 listening, I didn't think anybody was listening for a
10 while.
11 CHAIRMAN DOUGLASS: All kind of nerves running
12 through --
13 COMMISSIONER BUTTERWORTH: Easy to understand
14 amendment.
15 CHAIRMAN DOUGLASS: That was one of the problems with
16 it, Commissioner Butterworth.
17 COMMISSIONER BUTTERWORTH: No more taxation, no more
18 taxation in the State of Florida.
19 CHAIRMAN DOUGLASS: All right. We are still on the
20 Committee Substitute for Proposals 106 and 137. I think
21 that's all of the amendments, or do we have another one?
22 One more amendment. Would you read the amendment, please?
23 READING CLERK: By Commissioners Evans-Jones and
24 Hawkes, on Page 1, Line 25, delete the word "may" and
25 insert "shall".
DIVISION OF ADMINISTRATIVE HEARINGS (850) 488-9675
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1 CHAIRMAN DOUGLASS: Okay. Commissioner Hawkes.
2 COMMISSIONER HAWKES: Actually, there should be a
3 corrected amendment. And this one we really don't want.
4 Is there another amendment? The committee had prepared
5 earlier an amendment.
6 CHAIRMAN DOUGLASS: Now, I know why I skipped this.
7 Do you need -- tell us what you are trying to do.
8 COMMISSIONER HAWKES: What it really is, is there's
9 one more word, nonexempt. It would read, Property owned
10 by a governmental entity and used by a nongovernmental
11 entity by a proprietary or other nonexempt purposes shall
12 be taxable.
13 What we are trying to clarify there, Mr. Chairman, is
14 that sometimes a governmental entity will loan its
15 property out to another entity that would qualify for a
16 tax exemption, and we are certainly not trying to make it
17 taxable, maybe they loan it out for a spouse abuse center,
18 maybe they loan it out for a historical center.
19 And that just clarifies that those uses would still
20 be exempt. But what this amendment does is it takes away
21 immunity from government. And if you combine it with the
22 last one, it requires the Legislature to determine what,
23 when private businesses use government property, when
24 public purposes can be achieved to exempt that from the
25 tax roll, when the Tallahassee Golf and Country Club, I
191
1 guess, can be removed from the tax roll I guess is what
2 the real question is.
3 But this takes away immunity, this is truly leveling
4 the playing field. And I tell you what, I don't want to
5 hear complaints about the fax machines. I mean, I put up
6 with 167, I couldn't even use my fax machine, I couldn't
7 even keep paper on hand.
8 So, you know, this is good public policy and you
9 ought to support it because there's certainly nothing
10 contrary in this than supporting the last one. The
11 difference between this one and the last one is, do you
12 want the Legislature to decide public policy -- do you
13 want the Legislature to decide public policy? This really
14 lets the Legislature establish public policy because it
15 allows them to establish public policy on the county-owned
16 property as well. And I would ask for your favorable
17 consideration.
18 CHAIRMAN DOUGLASS: All right. They are about to try
19 to find your amendment which said that. And this is the
20 inter- instead of intramural amendment, is that it?
21 I don't think we have got the amendment Commissioner
22 Hawkes, that you are alluding to on the table. I think we
23 have got -- I think we better TP this until we get the
24 correct amendment and we'll move to the next one, with
25 your permission. Well, it's got to be quick enough to
192
1 pass it out. Wouldn't it be just as well to TP it and
2 move to the next one? That's not it. That's not it.
3 All right, we are standing in recess for one minute.
4 Commissioner Scott, you better not leave. That ought to
5 level the playing field right out.
6 (Brief recess.)
7 CHAIRMAN DOUGLASS: Commissioner Mathis, we are going
8 to TP it. And Commissioner Mathis, I understood from
9 someone at the recess --
10 COMMISSIONER MATHIS: I want to go home sometime.
11 CHAIRMAN DOUGLASS: -- that you were going to
12 withdraw your proposal that I was trying to bring up a
13 while ago, is that correct, Proposal 41?
14 COMMISSIONER SCOTT: Mr. Chairman.
15 CHAIRMAN DOUGLASS: Commissioner Scott.
16 COMMISSIONER SCOTT: Mr. Chairman, I would like to
17 second the motion to TP this proposal until about June the
18 5th.
19 CHAIRMAN DOUGLASS: We are going to TP it until we
20 can get back to it and we are going to move to Proposal 41
21 by Commissioner Mathis.
22 COMMISSIONER MATHIS: I don't know if this is out of
23 order or if I should say point of order, but we are
24 discussing the issue of exemption and immunity for
25 counties, municipalities and special districts. We have
193
1 all lent our intellectual power to that specific subject
2 for the last hour or so.
3 And so I don't know if it is appropriate, but I think
4 that we should continue this discussion because truthfully
5 I have two kids and a husband I would like to get home to
6 and I have got a business to run. And we keep TPing
7 everything. And I think we are ready to move forward on
8 this proposal. As a special request from those of us in
9 the back row, I would just request that we move forward.
10 CHAIRMAN DOUGLASS: I am perfectly willing to go
11 forward, but we do not have the amendment on the table
12 that's being offered. I can't go forward. They have TP'd
13 it, they are doing it and now I'm calling Proposal 41
14 which is by you and I'm going to ask them to read it.
15 This will help you get home.
16 COMMISSIONER MATHIS: Can I ask that we TP Proposal
17 No. 41?
18 CHAIRMAN DOUGLASS: Well that might not get you home,
19 but we will do it. We have TP'd 41. Now with that being
20 the case, we are going to move to more tax problems but we
21 are going to move to the Lottery, which is Committee
22 Substitute for Proposals 138 and 89. Commissioner Scott.
23 COMMISSIONER SCOTT: Mr. Chairman, I just want to
24 make, the last proposal passed 28 to 4, as I recall. Now
25 this proposal that we are TPing is diametrically opposed
194
1 to that proposal and so I was just curious how long are we
2 going to TP it? Are we going to do it today?
3 CHAIRMAN DOUGLASS: Well my original action which I
4 was corrected on was that I thought that had disposed of
5 it when you passed the other proposal. Because they were
6 in effect opposed to each other. And I assumed that when
7 we got to the next one, that it would be presented and it
8 wouldn't take long to dispose of it since, you are right,
9 it was 28 to 4 on the other one.
10 Now I am told it is not being withdrawn and it is
11 still on the special order. So I don't believe we can tie
12 up the whole afternoon waiting on this. I agree with you
13 on that. Commissioner Connor.
14 COMMISSIONER CONNOR: Mr. Chairman, I move to
15 reconsider the vote by which the previous proposal passed,
16 having been a member on the prevailing side.
17 CHAIRMAN DOUGLASS: All right. Do you want to take
18 it up? Commissioner Scott.
19 COMMISSIONER SCOTT: Under the rules it would come up
20 tomorrow.
21 CHAIRMAN DOUGLASS: That's true, but it could also
22 come up today if everybody wanted it to.
23 Are you doing that to try to keep the thing level?
24 Is that what you are trying to do, Commissioner Connor?
25 Are you doing that so that it will be alive while we
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1 consider the other one?
2 COMMISSIONER CONNOR: Yes, sir. Very frankly, I
3 voted for it on the come, so to speak, with the
4 understanding and expectation that we had a vehicle by
5 which we were going to provide relief to the private
6 businessperson who may now have more competitors in the
7 marketplace that had the benefit of tax immunity that
8 accrued by virtue of government ownership.
9 CHAIRMAN DOUGLASS: So what you are doing, you put
10 the other one on reconsideration and now we are moving to
11 the one that does that, that's what it wants to do.
12 COMMISSIONER CONNOR: Well and I had the sense,
13 frankly, from our discussions during the recess that in
14 fact it did not do that and I know Commissioner Brochin
15 was trying to figure out a way to do that. And, frankly,
16 as I say, I voted for that other one to level that
17 intra-governmental playing field with the expectation that
18 we were going to level the extra-governmental playing
19 field as well.
20 CHAIRMAN DOUGLASS: Well our problem right now,
21 Commissioner Connor, is we are having trouble with the
22 playing field, it is muddy. And we need to get this thing
23 going. I am perfectly willing to move on to yours,
24 Commissioner Mathis, if you are, with the understanding we
25 are going to come back to this one. That's Proposal 41.
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1 COMMISSIONER MATHIS: We have -- one, we have been on
2 notice that Proposals 106 and 137 were going to be
3 discussed today and we have been here for a good portion
4 of this week to discuss this.
5 I understand there may be some desire now to amend it
6 in order to try to salvage it, but I don't think that's
7 intellectually honest. And so I'd like to, I still would
8 like to propose to move forward with 106 and 137, but if
9 that's a lone voice I'd like to TP 41.
10 CHAIRMAN DOUGLASS: All right. We're going to TP 41
11 now.
12 COMMISSIONER MATHIS: Excuse me --
13 CHAIRMAN DOUGLASS: All right. I understand they are
14 prepared to go forward.
15 COMMISSIONER MATHIS: -- Mr. Chair, if 106 and 137
16 fail, then I will withdraw 41. And that's why rather than
17 wasting this body's time in arguing 41, it is really
18 dependent on what happens with 106 and 137.
19 CHAIRMAN DOUGLASS: All right. Now who is it that we
20 are waiting on on 106 and 137? Are you ready?
21 (Off-the-record comment.)
22 CHAIRMAN DOUGLASS: Okay. If we TP it now we are
23 going to move to the Lottery. So there was an objection
24 to leaving the subject at all, but we are going to have to
25 leave the subject and let's go to the Lottery.
197
1 Committee Substitute for Proposals 138 and 89 by the
2 Committee on Education and Commissioners Nabors and Riley.
3 This was adopted and a motion was adopted on
4 reconsideration and consideration was deferred until this
5 week. There is a pending Amendment No. 1 by Commissioners
6 Riley, Sundberg and Nabors. And I presume we can start by
7 reading it. Read the proposal and then read the
8 amendment.
9 READING CLERK: Committee Substitute for Proposal
10 Nos. 138 and 89, a proposal to revise Article X, Section
11 15 of the Florida Constitution; limiting the use of state
12 Lottery net proceeds to financing certain educational
13 facilities or funding early childhood care and education
14 programs.
15 CHAIRMAN DOUGLASS: There is an amendment on the
16 table and it is pending. Would you read the pending
17 amendment?
18 READING CLERK: By Commissioners Riley, Sundberg and
19 Nabors, on Page 1, Line 27 through Page 2, Line 16, strike
20 all of said lines and insert lengthy amendment.
21 CHAIRMAN DOUGLASS: On the amendment, Commissioner
22 Mills.
23 COMMISSIONER MILLS: Mr. Chairman, there is an
24 amendment which was passed out earlier, I know everyone
25 has all their papers well organized on their desks.
198
1 Commission Nabors, is the one that is being considered the
2 one that includes the language -- because if you have the
3 right amendment up there, we are ready to go and it is
4 easy.
5 (Off-the-record discussion.)
6 COMMISSIONER MILLS: Well why don't I go ahead and
7 describe what he, I think, intends to offer? There were
8 two problems, Mr. Chairman, that we discussed with regard
9 to the proposal as written on the Lottery. One was the
10 way it was written it was exclusive and it was impossible
11 for any new enhancements to ever be funded by the
12 Legislature, the way it was written.
13 If you have the right copy, Subsection 7, on Page 2
14 simply says, to enhance the funding of education programs
15 not existing prior to the effective date of this
16 amendment. You don't have that. Well I'll proceed to
17 explain what that does. Okay.
18 CHAIRMAN DOUGLASS: I'm going to ask everybody to pay
19 attention. When we have these amendments, what you are
20 doing is offering a substitute amendment. And it has just
21 been brought up here, and they haven't had an opportunity
22 to get it distributed, is my understanding, nor have we
23 read the substitute amendment. So I'm going to ask
24 everybody to please listen and we will read the substitute
25 amendment.
199
1 READING CLERK: By Commissioners Riley, Sundberg and
2 Nabors, delete everything after the proposing clause and
3 insert, Section 1, Section 15, of Article X, Florida
4 Constitution, is revised by amending that section to read
5 Article X, miscellaneous, lengthy amendment.
6 CHAIRMAN DOUGLASS: Now Commissioner Nabors, that's
7 your substitute amendment? You are recognized to explain
8 the substitute amendment. It will be passed out if it
9 hasn't been. Tell us what it does.
10 COMMISSIONER NABORS: I'm going to defer that
11 explanation to Commissioner Mills. This is the amendment.
12 It should have been on the desk, it is just a question of,
13 because we had this typed this morning. I don't know how
14 it ended up not on the desk.
15 But this is the result of a meeting yesterday, we got
16 into the debate between Mr. Mills and I, we TP'd it, we
17 have gotten together all the people involved in Lottery
18 and we have worked out the language to everyone's
19 satisfaction. So you are being handed out to you the
20 amendment to the amendment which has all the current
21 language in it.
22 CHAIRMAN DOUGLASS: This is a substitute amendment is
23 what it is, if we ever get it.
24 COMMISSIONER MILLS: Well, Mr. Chairman?
25 CHAIRMAN DOUGLASS: Yes.
200
1 COMMISSIONER MILLS: Let me go ahead and explain it
2 to you. And candidly for anybody I'll tell you precisely
3 whose interest it satisfies and whose it doesn't.
4 CHAIRMAN DOUGLASS: I started to say that we have got
5 37 members and I don't think it has all been satisfied.
6 COMMISSIONER MILLS: I think that's clear. There
7 were two issues. One issue was could you, could a future
8 Legislature do any enhancement that wasn't enumerated here
9 as a matter of constitutional law. And the way it was
10 written you could not.
11 This amendment says, it adds another purpose. And
12 that purpose is to enhance the funding of education
13 programs not existing prior to the effective date of this
14 amendment. So what that means, anything that exists on
15 the date that this amendment passed, if it is successfully
16 passed by this commission and sent to the public, will
17 automatically not be considered an enhancement, the
18 Legislature would have to deem something an enhancement
19 and it would not be currently funded. So that allows the
20 Legislature the flexibility in the future to invent new
21 ideas.
22 It also, here is what it also does which is more
23 important to those who are concerned about the fiscal
24 impact. The way this is written, once it takes effect, no
25 money could be spent on the FEFP because that is a program
201
1 currently in effect. And therefore by definition, the
2 FEFP would be excluded as an enhancement.
3 So what this does is allow for the invention of new
4 programs. I think it handles that pretty well. With
5 regard to those that are concerned about the hole in the
6 budget, Commissioner Nabors has scheduled the
7 implementation of this over five years. And so what this
8 does, in five years you would have a Lottery that would be
9 expended for solely the enumerated purposes, early
10 childhood, it includes school advisory councils, it
11 includes pre-K, it includes scholarships and it includes a
12 category that would allow the Legislature in the future to
13 be able to deem something an enhancement and to fund it.
14 It also at that point would constitutionally prohibit
15 something from being an enhancement which was previously
16 funded and that will include the FEFP. So that means when
17 this occurs, when it is finally in effect, you will have a
18 Lottery totally devoted to enhancements as enumerated.
19 And at least one of the provisions allows for new
20 programs.
21 CHAIRMAN DOUGLASS: All right. Now, just one minute.
22 What did it do to the provision in there about the bonds?
23 There would be no more bonds except the ones that were
24 just issued?
25 COMMISSIONER MILLS: Mr. Chairman, it didn't modify
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1 the provision about bonds at all.
2 CHAIRMAN DOUGLASS: That's what it was before, wasn't
3 it, Commissioner Nabors? Is that correct?
4 COMMISSIONER RILEY: Can I speak to that? And it
5 will explain this other three-page piece that we just
6 recently got, which is in fact what we had passed and then
7 voted to look at again a couple weeks ago. And then it
8 includes what was in yesterday's schedule which was our
9 yesterday's addition and changes, all of which we have now
10 added others.
11 So what you are going to get is what we hope is the
12 final version, which has the changes as listed by
13 Commissioner Mills, which include that the bonding is
14 limited to only what is in existence now, it adds the
15 Student Advisory Councils, does not reference the Florida
16 Statute, and it says -- and I don't have it in front of
17 me -- and its successor in purpose.
18 It adds in the Bright Futures Scholarships, and has
19 those over a period of time allowing the Legislature to
20 replace those with other types of scholarships. And the
21 one that is a result of yesterday's debate, in fact, as
22 Commissioner Mills says, allows the Legislature in the
23 future years to add other things that are not currently
24 being funded as existing educational programs but that
25 would be new enhanced educational programs as decided by
203
1 general law.
2 CHAIRMAN DOUGLASS: Does it specifically include the
3 early childhood programs, as it did before?
4 COMMISSIONER RILEY: As it did before. And the
5 pre-K, as it did before. So what we have added are about
6 four different things, some of which were given to you
7 yesterday. And then we added the one that Commissioner
8 Mills was talking about after yesterday's session and
9 that's what we bring to you today.
10 CHAIRMAN DOUGLASS: All right. Now does everybody
11 understand that? Then we can start the debate. I'm going
12 to have to remind everybody that in this chamber, it is
13 not appropriate to use cell phones. And they are not
14 allowed in the gallery. And I'm not going to call any
15 specific attention to anybody, but we don't use cell
16 phones in this chamber. We have got phones out in these
17 bubbles.
18 Now who wants to present this amendment that we are
19 going to get some day? We have it. All right. Has
20 everybody got it but me? Is it being distributed?
21 Commissioner Thompson. We are having Xerox problems
22 they tell me.
23 COMMISSIONER THOMPSON: Well while they are working
24 on that, I just wanted to ask a question or two. I think
25 we voted on this thing as blind as you can vote before, we
204
1 might as well go ahead and vote on it. But I did want to
2 ask a question or two.
3 CHAIRMAN DOUGLASS: We are a little blinder.
4 COMMISSIONER THOMPSON: For example, I don't know
5 about you but I still haven't gone and looked up to find
6 out exactly what a school advisory council is and looked
7 at that specific statute. I am assuming the rest of you
8 have that voted for it and so you know more than I do
9 about that and where the money is going.
10 But I did have a specific question for Commissioner
11 Mills about the new program. Now if you like
12 prekindergarten -- let's see, now you start kindergarten
13 at about five years old; don't you? So prekindergarten,
14 we are going to catch them at three. All right.
15 If you like prekindergarten, catching the kids at
16 three and bringing them into the educational system, then
17 you are going to like this amendment. If you like early
18 childhood care, I don't know what that is and how that --
19 okay, I'm getting an indication that's two. And I imagine
20 everybody knows more about that than I do because I don't
21 know how that differs from prekindergarten, but I assume
22 we are catching them even earlier than prekindergarten,
23 you will like this amendment.
24 If you like the Florida Bright Futures Scholarship
25 Act, you would like this amendment.
205
1 Now if you happen to be like me in a little church
2 that just paid some money for some Challenge Scholarships
3 to a community college, which is an existing program of
4 the state as I understand it, so that the community
5 college then matches or gets certain money from the state
6 to match that, and you would hope that maybe in the future
7 Legislatures might have the opportunity to use some
8 Lottery funds to help match those Challenge Scholarships
9 you might not like that too much; is that correct?
10 COMMISSIONER MILLS: Well, it depends on how you read
11 the scholarship language, which I haven't looked at. If
12 the scholarship language is broad enough --
13 CHAIRMAN DOUGLASS: It is. It says, To fund
14 scholarships established by general law for attendance at
15 a Florida public or private postsecondary educational
16 institution.
17 COMMISSIONER MILLS: Then I guess your group would
18 like it.
19 COMMISSIONER THOMPSON: Where is that?
20 CHAIRMAN DOUGLASS: Number 6 in the amendment.
21 COMMISSIONER THOMPSON: The one I am looking at has
22 got number 5.
23 COMMISSIONER MILLS: To fund scholarships established
24 by general law for attendance at Florida public or private
25 postsecondary educational institutions.
206
1 COMMISSIONER THOMPSON: Okay. Any other -- well I
2 need to look at that language. I'm sorry, I'll just have
3 to look at the language.
4 COMMISSIONER MILLS: To be clear, Commissioner
5 Thompson, one of the reasons I was concerned about this
6 before is sort of what your implied concern is. If you
7 are not on the list, if you are not on the list, and it is
8 currently funded, you are out of there.
9 And it is very clear -- and it is very clear, I mean,
10 there are a couple purposes here and either you want,
11 either you want to do this or you don't. And I understand
12 why some people may or may not want to do this. But I'll
13 be clear about what I think it means. And here is what I
14 think it means is that five years from now there won't be
15 any money going into the FEFP, there won't be any money
16 going for these other general purposes.
17 And the only purposes for which the Lottery can be
18 expended are those that are enumerated here or new
19 programs not currently in existence. In other words, we
20 had two problems we discussed yesterday; one was the
21 concept of new ideas we hadn't thought of, this solves
22 that problem.
23 The other issue was, my goodness, we are going to
24 eliminate funding in the Lottery for purposes that some
25 folks believe, and I share, are fundamental, basic
207
1 obligations of the state and therefore restrict the
2 Lottery only to supplemental enhancements. It does that,
3 but in the course of doing that, you are going to require
4 the Legislature otherwise to pick up this funding if they
5 so choose. And that's what it does.
6 CHAIRMAN DOUGLASS: All right. Now everybody should
7 have the amendment and it is being discussed. And
8 Commissioner Thompson, are your questions answered?
9 COMMISSIONER THOMPSON: Well I think so. The way I
10 understand it, if your program is not listed here, but it
11 is already in existence, it is just out of luck.
12 COMMISSIONER MILLS: That's correct.
13 COMMISSIONER RILEY: Can I answer that further --
14 CHAIRMAN DOUGLASS: Yes.
15 COMMISSIONER RILEY: -- Mr. Chairman? In the
16 proposal today, number 6 says it would fund scholarships.
17 So, you know, the fact that Bright Futures Scholarships
18 specifically would be phased out over a few years doesn't
19 mean that scholarships under another program could not be
20 included in this.
21 CHAIRMAN DOUGLASS: Well I don't think that was his
22 question. He got answers to that one. It says you can do
23 all scholarships under this, in effect. What he is
24 talking about is the prohibition --
25 COMMISSIONER THOMPSON: School lunch programs.
208
1 CHAIRMAN DOUGLASS: -- prohibition against funding
2 items that are presently not funded.
3 COMMISSIONER THOMPSON: The school lunch program is
4 in existence. You would not take Lottery money and use it
5 to enhance that program under this amendment; would you?
6 COMMISSIONER RILEY: No. If it is an enhancement of
7 educational purposes --
8 CHAIRMAN DOUGLASS: Not existing prior to the
9 effective date of this amendment.
10 COMMISSIONER RILEY: So if you have got a program
11 that exists, existing now and you want to change that
12 program and enhance it and make it a different program
13 that may incorporate some of that, then I would say it
14 would.
15 COMMISSIONER THOMPSON: It might be a program that's
16 working perfectly today, you just want to take Lottery
17 money -- or the Legislature might want to take Lottery
18 money and give it to it, you can't do it under this
19 amendment. Is that right or is that wrong?
20 COMMISSIONER RILEY: Again, the purpose of this is to
21 try to get a better education and to enhance the existing
22 general educational dollars. So, you know, you can split
23 hairs, but, you know, we were trying to open as many doors
24 here as possible, not close them.
25 CHAIRMAN DOUGLASS: Commissioner Morsani.
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1 COMMISSIONER MORSANI: Ms. Riley, I want to close
2 them. Where are we going, ladies and gentlemen? We are
3 not a Legislature, these are not in our purview. Why in
4 the world are we continuing to deal with this? With all
5 due respect to the very lovely people that are proposing
6 this proposal and some of the others, these are not in our
7 purview.
8 Leave the Legislature to legislate, that's not why we
9 are here. And that's what we are attempting to do. We
10 are attempting to dedicate and tell the Legislature where
11 to spend money and how to spend it.
12 I want to put, I do want to close the door,
13 Ms. Riley. We have got to close the door. We are never
14 going to get through with this process and I think all of
15 us are getting pretty doggone tired of regurgitating the
16 same words every hour, day after day. Let's get on with
17 the show. Let's vote the damn thing, pardon me, let's
18 vote it down and go on to something else.
19 CHAIRMAN DOUGLASS: Your emphasis is well taken but
20 slightly out of order. Commissioner Marshall was up next
21 and then we have Barnett and Barkdull and Rundle and
22 Langley. Gosh, you-all remember the order you get up in,
23 please. Commissioner Marshall.
24 COMMISSIONER MARSHALL: Mr. Chairman, a very succinct
25 question I think directed to Commissioner Mills. What is
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1 an advisory council? I understand them to be nonlegal
2 entities, I don't understand how they can receive and
3 spend public monies.
4 COMMISSIONER MILLS: Well as I understand this, and I
5 think Commissioner Nabors might understand this better
6 than I, is that this, there is an existing school advisory
7 council group, this is actually Commissioner Corr's
8 proposal, and it is -- there is currently funding that
9 goes there. I think it is $40 million.
10 COMMISSIONER NABORS: Mr. Chairman?
11 CHAIRMAN DOUGLASS: Commissioner Nabors. You are
12 answering the question, right?
13 COMMISSIONER NABORS: Yes, yes. Currently there is
14 funding that goes to the school advisory councils and so
15 this doesn't pick the current school advisory councils, it
16 just says, Such school advisory councils as created by
17 general law.
18 Let me -- can I take a moment to, can I have your
19 attention, please? This is a very important amendment,
20 proposal. Now, I apologize for the confusion in everybody
21 getting a draft to the table. We had this done very early
22 today, we met last night and this morning working out the
23 language that was debated yesterday.
24 I apologize for the confusion, but I would like
25 everyone's attention because I know it is late in the day
211
1 and we have had a lot of issues dealing with technical
2 issues. This is an important issue. I don't want this to
3 get short-changed because it is coming up late in the
4 afternoon.
5 If you look at what was handed out to you, okay, what
6 we have changed from what you have seen before is if you
7 look on Page 2, Line 16, the cause of the concern that
8 Commissioner Barkdull and others had is we didn't
9 enumerate the existing student advisory council.
10 One of the permitted uses is the Legislature would
11 have the authority to give money to school advisory
12 councils established by general law for use to enhance the
13 educational programs. They do that now so we don't
14 preclude that. They can use Lottery money for that.
15 CHAIRMAN DOUGLASS: We are not getting anywhere this
16 afternoon because we are not keeping order in the chamber.
17 Now we have rules and I hate to be the one that has to
18 keep bringing them up, and I'm sorry that you had to
19 mention the fact it was important. This is no more
20 important than the others were to somebody else when we
21 weren't doing very well at keeping order either.
22 So in respect to the people that are working on this
23 and how hard they have worked and working this week, I
24 please would ask that the chamber stay in order. And
25 anybody that doesn't have business in here from time to
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1 time, please sit somewhere and be very quiet. Now I don't
2 want to be any more direct than that, but we have got to
3 get on with it.
4 Now you were up answering a question and I think
5 that's as far as it should go because I said I would
6 recognize Commissioner Barnett next. And you are
7 recognized, Commissioner Barnett.
8 COMMISSIONER BARNETT: You can pass me. I guess I
9 had a question, Mr. Chairman. I keep hearing references
10 to the fact that -- and I don't know who to ask this
11 question to -- that if we pass this, this is going to
12 create about a $450 million problem for the Legislature.
13 Is that -- Commissioner Scott, is that --
14 (Off-the-record comment by Commissioner Mills.)
15 COMMISSIONER BARNETT: -- so that tells me that if
16 that's true, and I want a personal income tax, then I
17 should vote for this amendment; is that correct?
18 CHAIRMAN DOUGLASS: Well since you had a couple
19 Senators present, I think you got their attention and they
20 left. The answer to your question according to
21 Commissioner Mills, which is not in the record, is that
22 will but he is not supporting the income tax. Is that
23 correct?
24 COMMISSIONER MILLS: That's very correct,
25 Mr. Chairman. But --
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1 CHAIRMAN DOUGLASS: 450 million correct or not?
2 COMMISSIONER MILLS: I don't think 450 is correct.
3 Well there is a $220 million issue as it relates to the
4 FEFP, as I understand it. I believe that the total
5 amount, maybe Commissioner Nabors has it, is $400 million.
6 I mean, let's be candid. The folks who will vote for
7 this are voting for this actually going back to
8 Commissioner Crenshaw's concept which is to say they think
9 it should be spent for enhancements and believe that the
10 current program such as the FEFP are not enhancements.
11 If somebody is voting against this, I can understand
12 somebody voting against this because they simply don't --
13 I'm going to vote for it, by the way. I think some people
14 said, gee, you are doing a very interesting job describing
15 this, but are you going to vote for it or against it?
16 If you are concerned about the creation of that hole
17 over five years, it does that. But the idea is to do
18 that, for those that are supporting it. Which is to say
19 that they want to compel that the Lottery be spent for
20 enhancement purposes and not for basic purposes.
21 CHAIRMAN DOUGLASS: All right. Now the next person
22 to be recognized was Commissioner Barkdull.
23 COMMISSIONER BARKDULL: I just wanted to see, state a
24 point of order and see if I was correct of where we are.
25 This is a motion to reconsider this committee substitute,
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1 in which there has been offered an entire new proposal.
2 If we vote for this proposal, it substitutes what we
3 passed yesterday or the day before, or sometime previous
4 anyway. Correct?
5 CHAIRMAN DOUGLASS: I think we voted to reconsider
6 and appended it on the calendar; didn't we?
7 COMMISSIONER BARKDULL: That's what I want to be sure
8 that we know when we get down to what we are voting for.
9 As I understand, this is a complete rewrite.
10 CHAIRMAN DOUGLASS: What it is is we came here today
11 after voting to reconsider, it was deferred until today,
12 with a pending amendment. He has offered a substitute
13 amendment to the pending amendment. The effect of the
14 pending amendment is to really rewrite the proposal. We
15 do that quite often with these amendments.
16 COMMISSIONER BARKDULL: I understand that, but I want
17 to be sure the group understands where we are. If we pass
18 this, it substitutes for everything we have done before
19 this afternoon. If we defeat this, we are still on the
20 motion to reconsider the matter which we previously
21 passed.
22 CHAIRMAN DOUGLASS: Which was the original proposal.
23 COMMISSIONER BARKDULL: Correct.
24 CHAIRMAN DOUGLASS: That is correct. All right.
25 Commissioner Rundle, you were next.
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1 COMMISSIONER RUNDLE: I am so confused it is hard for
2 me to know how to phrase the questions.
3 I guess, Commissioner Nabors, is the concept here to
4 support all the recent research on readiness, success by
5 six programs that we have learned about in the last year
6 or so? Is that the purpose of this?
7 COMMISSIONER NABORS: It is to dedicate the money for
8 that, plus scholarships.
9 COMMISSIONER RUNDLE: So in some ways what we are
10 doing is we are shifting whatever enhancement programs
11 presently exist from the Lottery money; dropout
12 prevention, I'm trying to think what they might be, Head
13 Start, gifted programs that presently exist between K and
14 12, shifting that to the front end from zero to five or
15 six?
16 COMMISSIONER NABORS: That's part of it, that's not
17 the only use. One of the difficulties I am having,
18 Mr. Chairman, in responding to questions is because of the
19 confusion of what's on the table we haven't had a chance
20 to explain the proposal in total and that's causing
21 confusion. That's why I tried to start out with trying to
22 explain what they have got.
23 CHAIRMAN DOUGLASS: You explained it before because
24 we voted on it and then they offered an amendment to it
25 which was pending on reconsideration.
216
1 COMMISSIONER RUNDLE: But in my mind it is quite
2 different because I really support the concept of
3 investing our money in smaller children earlier.
4 COMMISSIONER NABORS: Let me show you what's
5 different from what you have in front of you to answer
6 your question. Commissioner Rundle, what you have in
7 front of you is different from what you saw before. Let
8 me answer your question.
9 What's different is is on Page 2, Line 5, rather than
10 name statutorily the current advisory councils as a
11 permitted use, we just say, Advisory council as
12 established by general law to enhance educational funding.
13 So Lottery money could be used for that, okay?
14 Previously you had provisions that Lottery money
15 could be used for bonds that have already been authorized
16 and for pre-K and for early childhood care and education
17 that didn't exist for enhanced programs.
18 This also makes it clear on Line 18, Page 2, another
19 permitted use of Lottery money is to fund scholarships
20 established by general law. Whether that's Bright
21 Futures, Challenge or whatever it is that's another
22 permitted use.
23 And what we have added in Subsection 7, as a result
24 of the debate yesterday, is to make sure if there is
25 another new idea that comes along in the next 20 years,
217
1 that's enhancement, that's not an existing educational
2 program, that's a permitted use too.
3 There is no question what that does is that's all the
4 programs Lottery can be used for, for the bonds that have
5 already been authorized, for the existing pre-K program,
6 for early childhood care and education that doesn't exist
7 on the effective date or enhanced funding level, for
8 scholarships and for student, for the student advisory
9 councils as may be established by law, and any other
10 program not in existence.
11 Once you do that and you go and look at the existing
12 use of Lottery money, approximately 400 million of that
13 money is currently being used for things other than this
14 enumerated enhancement, for community colleges, for higher
15 education, for K through 12.
16 Those who believe this proposal is important say that
17 that's not enhancement, that's just replacement of
18 existing dollars. So what this proposal does in the
19 schedule is over a five-year period the Legislature would
20 have to, over a five-year period, one-fifth at a time,
21 would have to dedicate the money to these enumerated uses
22 and phase out that 400 million over five years, which
23 means over the next five years an additional $80 million
24 would have to be found and would have to go to either a
25 combination of scholarships, to pre-K, to early childhood
218
1 care and education, to all of these enumerated uses and
2 the Legislature would have to get there but they would
3 have five years to get there.
4 If you believe what the people have told us, and that
5 the Lottery should be used to enhance education, this is
6 the only way you can get there. The only way you can get
7 there, because otherwise it is going to be used for
8 programs that are in existence now and it is going to be
9 supplemental.
10 So all of us who have worked on this now feel very
11 comfortable that this dedicates the money to those
12 programs that are enhancements, one. Also because of
13 Mr. Mills' concern yesterday, we have added a Subsection 7
14 to say if there is a new idea that's not an existing
15 program we don't know about, some type of regional
16 interactive computer thing we don't know about, that could
17 be an enhancement too, but not an existing program. There
18 is no question about that. If it is an existing program
19 on the effective date of this, over a five-year period
20 that money has got to be phased out.
21 But that's what the people -- in response to your
22 question -- that's what the people are telling us they
23 think the Lottery needs to be used for enhancements.
24 The Legislature will choose whether to use it for
25 pre-K, early childhood care and prevention or scholarships
219
1 or any other permitted use within here. They have already
2 agreed they are going to use it for bonds, no additional
3 bonds will be used, only those they have already agreed.
4 So what we have done is we have recognized
5 specifically in the schedule that the existing Bright
6 Futures would be honored. The Legislature next session
7 could really do the scholarship program again from
8 Lottery, or they could do Challenge. They would have
9 complete flexibility.
10 What they wouldn't have flexibility to do is continue
11 forever the funding of existing school programs that
12 aren't enhancements.
13 CHAIRMAN DOUGLASS: All right. Commissioner Langley
14 was next. Commissioner Mathis, you are after Commissioner
15 Langley.
16 COMMISSIONER LANGLEY: You know, folks, every two
17 years in the House and every four years in the Senate they
18 have a thing called an election. And in that election the
19 people who wish to represent the people of their district
20 go forth and put their names on a ballot and they have
21 issues in that campaign.
22 There is no doubt -- I voted against the Lottery to
23 start with. I think it is the most inverse tax that there
24 is. But in the process of selling the Lottery as the, you
25 know, the panacea of all the educational ills was an
220
1 absolute fraud on the people of this state.
2 The total Lottery take wouldn't pay 3 percent of the
3 educational budget and yet the people think it is going to
4 solve everything. It is not going to do that. But more
5 importantly, we are creating here admittedly somewhere in
6 the neighborhood of a $400 million deficit, we are going
7 to consider Article V which may be another quarter to a
8 half-million dollar deficit that we are passing to this
9 Legislature.
10 Now you want to kill every proposal we have on that
11 ballot, put this one on there with Article V. People
12 aren't that stupid. There ain't no free lunch. That
13 money is coming from taxes. Now who are we to determine
14 this?
15 You know, right now we are in a great economic boom.
16 I have been in this Legislature in '74 and '75 when it
17 went the other way. So what happens in the educational
18 budget when it goes the other way and we can't even meet
19 the necessities of the FEFP program?
20 As Commissioner Morsani -- and I thought, it is like
21 you are going to have a great automobile. You are going
22 to have the deluxe trim package, all the mirrors and
23 vanity mirror and everything there and the leather trim,
24 but you have got no engine.
25 So, you can't -- don't put the Legislature in this
221
1 box. Don't pass these deficits on to the Legislature with
2 the responsibility and say, Oh, they will work it out. I
3 asked one of the sponsors, what happens if we can't meet
4 the basics of the education program? They can raise
5 taxes. Whew, shouldn't have said that. That's where you
6 are going.
7 Let the Legislature take care of this and face the
8 people every two to four years and answer for what they
9 do. Let's don't pay Legislature here. It is a burden
10 that we just can't afford to pass on to somebody.
11 CHAIRMAN DOUGLASS: All right. Commissioner Mathis.
12 COMMISSIONER MATHIS: I have a question for
13 Commissioner Nabors. Is there anybody in this proposal
14 that would prevent the Legislature from terminating all
15 existing programs, and once this passes, reestablishing
16 them, in that they would be brand new programs eligible
17 for funding of Lottery dollars?
18 COMMISSIONER NABORS: Well, I don't think I can
19 answer -- the Legislature, no, the Legislature wouldn't
20 have -- what the Legislature would have to do if they
21 abolished the program, they would have to refund it. They
22 could only use it for these types of programs. For
23 scholarships, they could abolish Bright Futures, they
24 would have to use another scholarship program. But let me
25 finish. On the early childhood care and education, it has
222
1 to be used for programs that didn't exist on the effective
2 date of the amendment for enhanced funding.
3 For pre-K, you know, the pre-K program would have to
4 be expanded. We have debated this several times and it's
5 passed favorably. It is an important issue. And the
6 question is, what we have tried to do is address some of
7 the needs that we heard that people are concerned about,
8 the fact that scholarships were included in this example,
9 which we have done.
10 We have also tried to address the issues about giving
11 the Legislature a reasonable period of time to grandfather
12 this in, which is five years. And we have also said,
13 Let's make sure we don't preclude their ability in the
14 future to fund something that no one has thought of, and
15 we give them that authority.
16 So, the problem is whether or not you believe that
17 the people think they have been misled on the Lottery. I
18 believe they do. I believe they thought it was going for
19 enhancement. And this is the only way we can ensure that
20 it'll go for enhancement.
21 COMMISSIONER MATHIS: I have another question. I
22 think what we are trying to do is bind the Legislature's
23 hands to use Lottery's moneys to enhance education, when
24 in fact that might be a futile effort because they could
25 always, you know, in all of the programs that are
223
1 currently in existence once this passes, institute them
2 under new names and use Lottery funds to fund those new
3 programs. I'm just concerned that an effort to get the
4 Legislature to do something that there's not the political
5 will to do is futile. I'm trying to see and understand
6 how this --
7 COMMISSIONER NABORS: Let me respond to that question
8 then. There's no question, we are tying the hands, we are
9 limiting the hands of the Legislature, but your fear is
10 unfounded because they would have to use it for these
11 types of purposes and there's a need there for these types
12 of purposes. There's no shenanigans that can occur on
13 this. Their hands are being tied, they have to use it for
14 enhancement, but they cannot do something indirectly that
15 this doesn't directly require them to do.
16 CHAIRMAN DOUGLASS: All right. Commissioner
17 Marshall.
18 COMMISSIONER MARSHALL: In response to the first
19 question that Commissioner Mathis just raised, let me say,
20 if I were a school board member or a school administrator,
21 I would be very creative in trying to find ways to do just
22 that, to reenact some programs that have been disqualified
23 because they were in effect when this program took place.
24 I would try to find some way, find some way to reestablish
25 them.
224
1 But, Commissioners, my head, I beg your pardon, my
2 heart wants to support this proposal. Largely because I
3 think it tends to make honest citizens out of us and
4 causes us to admit the fraudulence that was the Florida
5 Lottery and that we still live with as a fraudulent
6 device, but my head tells me there's too many problems
7 with it that really could create mayhem in the operation
8 of our schools.
9 There are programs in effect now that school people
10 will tell you must be preserved and expanded and enhanced.
11 Do you want to know what some of those are? Magnet
12 schools, school to work programs, very strong current
13 program with a lot of interest around the state, preschool
14 programs. There are now, in effect, in many school
15 districts, very good preschool programs that go down to
16 children age 3. They are in effect now, and therefore,
17 they wouldn't qualify by the terms of this proposal.
18 Teacher training for technology, counties are trying
19 to get that underway now to teach teachers how to use
20 technology. Would we disqualify that? I just don't see
21 how this is a workable plan. Well, you know, I would
22 therefore ask that, in its present form, that it not be
23 supported.
24 CHAIRMAN DOUGLASS: Commissioner Rundle.
25 COMMISIONER RUNDLE: Commissioner Nabors, I just want
225
1 to follow-up on my question and your answer. I'm very
2 concerned about something you said. I am a big advocate
3 of public schools and I have children in the public school
4 system. And my mother was a teacher and I used to be a
5 teacher, so we are great advocates of our schools, but I
6 think citizens did expect Lottery moneys to be used to
7 enhance their educational programs in school.
8 And I am a little concerned that really a lot of this
9 may go to before school, which isn't a bad idea, I mean, I
10 believe in that concept. But I am a little concerned that
11 when you say the public thought the money was going to go
12 for enhancement programs, in a way, what I'm concerned
13 about is we are defining enhanced programs as being before
14 school, the emphasis is really before the kids get into
15 kindergarten. And I don't know if that's what citizens
16 are going to support.
17 I think they want their kids to have better enhanced
18 programs as they are in school. That's one concern. The
19 second thing, you really didn't answer when I mentioned
20 Head Start and some serious programs like that. Do you
21 think that they will just be -- become a shell game, are
22 we going to force the Legislature to then perform a shell
23 game because I think that could be equally disturbing.
24 COMMISSIONER NABORS: Let me ask you. In the first
25 place, it specifically enumerates the appropriations for
226
1 pre-kindergarten programs as a permitted use, and then for
2 early childhood care and education programs, they have to
3 be not in existence or increased funding levels. Pardon?
4 CHAIRMAN DOUGLASS: Commissioner Scott, I think you
5 have something for the good of the order here.
6 COMMISSIONER NABORS: The only thing I can say is you
7 need to vote to keep -- to give it to the public. I sent
8 you a tape, Early Childhood Care means Head Start, all of
9 those types of programs, children with disabilities, all
10 of that testimony we heard in the committee. That has a
11 meaning in the real world as to what kinds of programs
12 they are. All of the programs that you are concerned
13 about are within that terminology.
14 CHAIRMAN DOUGLASS: All right. Commissioner Scott.
15 COMMISSIONER SCOTT: One point, just -- the
16 Legislature didn't pass the Lottery, the Legislature
17 didn't put it on the ballot, this was done by a petition,
18 and so, you know, I think we need to -- the idea, I'm
19 getting the impression that maybe somebody thinks, Well,
20 this is some kind of legislative plot, that then we took
21 all of the money and absconded. Well, the Legislature
22 didn't do it.
23 This is just, with all due respect to the goals of
24 Commissioner Nabors, this is not a good idea. I mean, you
25 could come up with smaller class sizes, for example, that
227
1 wouldn't be covered. What if we come up with a policy
2 that that's an enhancement? Well, that is already in
3 existence.
4 It is not a good idea to do this and I would urge you
5 to vote for it because if you do, it'll then, in effect,
6 I'm surprised of some of the people that would be for it
7 who are interested in current education programs, who are
8 interested in higher or postsecondary, to say that we are
9 going to take $400 million, it just isn't -- it just isn't
10 real and you should let the Legislature do it like
11 Commissioner Langley said.
12 And that's the basic, one of the basic things we are
13 here for is the budget, so I would urge you, again, not to
14 vote for this. And there's no form where you are going to
15 list it and put this in the Constitution, it's just not
16 reasonable. The idea, perhaps, is good, but it's just not
17 a reasonable thing for us to be doing.
18 CHAIRMAN DOUGLASS: Commissioner Sundberg.
19 COMMISSIONER SUNDBERG: I'm trying to put together
20 the comments I hear, some of which come from the same
21 speaker. I hear that the revenues from the Lottery are
22 nothing more than a drop in the bucket when we are talking
23 about the cost of education in this state. I'm told, at
24 the same time, that this will leave a disastrous hole in
25 the budget if we approve this proposal.
228
1 Now, you can't have it both ways. I agree that it is
2 a drop in the bucket in terms of having quality education
3 in this state, and that the Lottery is never going to
4 provide us quality education in this state. Only when the
5 people's representatives have the will to appropriate the
6 revenues necessary to do that, and only when the citizens
7 of this state have the will to vote for the bond issues
8 that are necessary for the capital facilities that we need
9 are we going to have those.
10 What we are talking about here is a rather limited
11 sort of thing, but it is, by golly, something that I think
12 the populous out there will magnify us for, they will say,
13 golly, maybe somebody is coming around, finally, and going
14 to give it to us straight from the shoulder and we now get
15 the opportunity to do that which we thought all along we
16 were doing.
17 In terms, Commissioner Rundle, and I understand you
18 say that people thought they were enhancing education of
19 the school, if you, you know, listened to these tapes,
20 what I'm hearing, and I was convinced, I harbored some of
21 the same concerns you have. I drew a proposal that had
22 sort of nuts and bolts in it, you know, but I was
23 convinced by former Chancellor Reed and the others that in
24 order to enhance the educational experience of the
25 children of this state, one of the most important things
229
1 we can do is address these early childhood programs.
2 And that, in truth and fact, that will be much more
3 important than putting computers in the classroom, the
4 sort of hardware stuff we thought about. The Legislature
5 doesn't have to do it, but it certainly opened that option
6 to them. Seven opens the entire vista of enhancement.
7 Now, what this proposal attempts to do is to say,
8 somehow we got off on the wrong foot with these Lottery
9 moneys, everybody perceived, and I think rightly
10 perceived, based on what was represented to them, that
11 this was going to be used to enhance education in this
12 state not substitute for other general revenue funding of
13 education in this state.
14 And I submit to you that if you say, Well, we really,
15 yep, we all agree that's what it was supposed to be but
16 now look at what they did and because of what they did, it
17 has become irretrievable. We can't do anything about it.
18 They have got us in the hole and there's no way to get out
19 of it.
20 What this does is to say, ladies and gentlemen, to
21 the people, that the Legislature is going to have to wean
22 itself off the use of these Lottery funds to provide for
23 other than enhancement of education in this state.
24 I suggest to you that you earlier voted on this
25 proposal or an earlier version of this proposal. This
230
1 simply is the February 11 version of that proposal and it
2 is the newer, snappier, better one and I urge you to
3 please support it.
4 CHAIRMAN DOUGLASS: Commissioner Connor.
5 COMMISSIONER CONNOR: Mr. Chairman, I have never
6 voted for this proposal and don't intend to, because I
7 believe, its sponsors have succumbed to the notion that
8 nothing matters beyond politically desirable results,
9 however achieved. I would like to read for you, if I may,
10 just an ever-so-brief portion from Judge Bork's book
11 called the Tempting of America. And Judge Bork is very
12 critical of the judiciary when it usurps legislative
13 authority.
14 And I would suggest that, as I read this to you,
15 where the term Judge is used, would you substitute the
16 word Commissioner and evaluate whether or not this doesn't
17 have application to this body? "In law, the moment of
18 temptation is the moment of choice when a judge realizes
19 in a case before him, his strongly held view of justice,
20 his political and moral imperative is not embodied in a
21 statute or any provision of the Constitution, he must then
22 choose between his version of justice and abiding by the
23 American form of government.
24 "Yet the desire to do justice, whose nature seems to
25 him obvious is compelling, while the concept of
231
1 constitutional process is abstract, rather arid, and the
2 abstinence of counsel is unsatisfying. To give into
3 temptation this one time solves an urgent human problem
4 and a faint crack appears in the American foundation, a
5 Judge or a Commissioner has begun to rule where a
6 Legislature should.
7 "The American people are tempted as well. Many of
8 the results seem good and they are told that the choices
9 are between a cold, impersonal logic on the one hand and
10 on the other hand morality and compassion. This has
11 always been the song of the tempters and now it's heard
12 incessantly from those who would politicize the courts in
13 the Constitution as a necessary stage in the
14 politicization of culture at large.
15 "The democratic integrity of law, however, depends
16 entirely however upon the degree to which its processes
17 are legitimate. Ladies and gentlemen, I would submit to
18 you that the process by which we go about our business is
19 every bit as important as the product. And to the extent
20 that we subvert the process in order to achieve a
21 politically desirable result, that is to do an in-run
22 around the Legislature whom we complain has not been
23 willing to do its job, is to subvert the process, and in
24 my judgment, to bring discredit upon this body which
25 becomes then just another political group seeking to
232
1 achieve political ends, and in the process we subvert this
2 democratic constitutional republican process that we enjoy
3 at this state and we continue to erode the foundation of
4 our republic."
5 It's for that reason that I'm going to vote against
6 this proposal, yet one more time.
7 CHAIRMAN DOUGLASS: Commissioner Riley.
8 COMMISSIONER RILEY: Mr. Chairman, it's interesting,
9 I didn't realize that we were going to erode the
10 foundation of our republic.
11 CHAIRMAN DOUGLASS: We are not judges.
12 COMMISSIONER RILEY: Oh, good. I would like us, I
13 would like us to read the last paragraph and then I'll
14 read it for you, just before our amendment, our proposed
15 amendment, which says that, Net proceeds derived from the
16 Lotteries shall be deposited in a state trust fund to be
17 designated to state education Lottery's trust fund to be
18 appropriated by the Legislature.
19 It doesn't say what for, it can be appropriated for
20 anything, not even for education, as I read this, other
21 than we would -- as we would hold the feet to the fire,
22 the feet of our legislators to the fire, I would suggest
23 that all we are doing here is giving some very strong
24 options and also listing some things that the dollars must
25 be used for, and that we are making this better and not
233
1 worse and I suggest that we get to the vote because I know
2 people are tired of talking about it.
3 CHAIRMAN DOUGLASS: All right. Now, somebody is
4 going to close. But first I want to tell you what we are
5 voting on, now that we have these discussions. We have
6 pending a substitute amendment for a pending amendment
7 when we left this matter before. If you vote down this
8 substitute amendment, then we go back to the pending
9 amendment and that will be taken up.
10 Then if you vote that down, then we go back to the
11 original proposal and we take that up. And if you vote
12 that down, then we are through with it for a while. I
13 think we are through with it because this is on
14 reconsideration. Am I right, Commissioner Barkdull?
15 COMMISSIONER BARKDULL: Yes, sir, that was the reason
16 I raised the point of order earlier to be sure we
17 understood the posture that we were going to end up in.
18 CHAIRMAN DOUGLASS: Okay. So, now, what we are on,
19 and I think we probably have had enough debate. If
20 anybody feels otherwise, I won't cut them off. I doubt if
21 anybody is going to change any more votes. Commissioner
22 Nabors may.
23 COMMISSIONER NABORS: I hope we have a quorum. I
24 hope we do.
25 CHAIRMAN DOUGLASS: We have a quorum.
234
1 COMMISSIONER NABORS: I know we have debated this, I
2 am not going to delay it. I regret this came up late in
3 the day today, I think everybody is tired. I think the
4 fears that I've heard are true on this, this is an
5 important thing we have heard from the people. We are not
6 doing anything, the people will vote on this. I would
7 hope -- this is a very important issue. Those of you who
8 are concerned about it, we need to keep this alive. It
9 doesn't need to be killed today. We voted out favorable,
10 I think it was 17 to 7, when we were more energetic, less
11 tired.
12 And I would urge you to vote for this, I think it is
13 one of the most governmental, important things that we can
14 do is to make sure that the money is spent for enhanced
15 education, and to have a dedicated fund for these early
16 childhood care and education programs. Without those, we
17 are going to lose generations of kids. And I just think
18 it is absolutely the right thing to do.
19 One of the things wrong with our process is, is we
20 don't have a public hearing forum. We had six people at
21 the education committee who chose to read the publisher of
22 the Miami Herald and other people talk about this, this
23 compelling testimony. I sent tapes out. We need to keep
24 this alive. I would urge you to vote for it. We have
25 improved it from the other two that you have received.
235
1 You have another bite at the apple if you don't like it
2 down the line. I think you would like it if you weren't
3 tired and we had a chance to talk about it in more detail.
4 CHAIRMAN DOUGLASS: All right. We are going to have
5 a quorum call before we vote. We are going to have a
6 quorum call.
7 SECRETARY BLANTON: Quorum call. Quorum call. All
8 commissioners indicate your presence. Quorum call.
9 (Quorum taken and recorded electronically.)
10 CHAIRMAN DOUGLASS: I thought all of those people had
11 left, that had cleared the gallery. I see they didn't.
12 (Quorum taken and recorded electronically.)
13 SECRETARY BLANTON: Quorum present, Mr. Chairman.
14 CHAIRMAN DOUGLASS: All right. Yes, sir,
15 Commissioner Barkdull.
16 COMMISSIONER BARKDULL: You understand now, this is
17 on the substitute amendment.
18 CHAIRMAN DOUGLASS: This is on the substitute
19 amendment which we have been discussing. And then after
20 we vote on that we'll know what else we vote on.
21 COMMISSIONER BARKDULL: Now, if the substitute
22 passes, then we vote on the proposal as substituted.
23 CHAIRMAN DOUGLASS: That is correct.
24 COMMISSIONER BARKDULL: If the substitute fails, we
25 still have to vote on the proposal.
236
1 CHAIRMAN DOUGLASS: We have to vote on the amendment.
2 COMMISSIONER BARKDULL: The amendment then.
3 CHAIRMAN DOUGLASS: If that fails, then we vote on
4 the proposal. If it passes, then we vote on the proposal
5 as amended.
6 COMMISSIONER BARKDULL: Right.
7 CHAIRMAN DOUGLASS: But right now, this last
8 substitute amendment is what we are voting on, which has
9 been very well discussed. All right. Would you open the
10 machine and let us vote.
11 (Vote taken and recorded electronically.)
12 CHAIRMAN DOUGLASS: Lock the machine and record the
13 vote.
14 READING CLERK: Twenty yeas, 12 nays, Mr. Chairman.
15 CHAIRMAN DOUGLASS: We revert to the proposal as
16 amended by the substitute amendment. Does everybody
17 understand that? Now, you can debate this. Okay, thank
18 you. We took a vote and you can't debate it. All right.
19 Now, prepare to vote on the real vote, whether or not you
20 are for this proposal as amended by the substitute
21 amendment.
22 COMMISSIONER BARKDULL: Point of inquiry. If it does
23 not get an affirmative vote, that lays this matter to
24 rest, correct?
25 CHAIRMAN DOUGLASS: If it does not pass, it's dead.
237
1 COMMISSIONER BARKDULL: Thank you.
2 CHAIRMAN DOUGLASS: All right. If it does, it isn't,
3 it still has to go through the process. All right. Open
4 the machine and let us vote.
5 (Vote taken and recorded electronically.)
6 CHAIRMAN DOUGLASS: Lock the machine.
7 READING CLERK: Fifteen yeas, 17 nays, Mr. Chairman.
8 CHAIRMAN DOUGLASS: Somebody fouled me up. I thought
9 I was going to cast the tie-breaking vote and you slipped
10 in there and voted with me.
11 COMMISSIONER BARKDULL: Mr. Chairman, I now move that
12 we take up what we temporarily passed, which is Committee
13 Substitute for Proposals 106 and 107 by Hawkes and
14 Evans-Jones.
15 CHAIRMAN DOUGLASS: All right. We are back on
16 Committee Substitute for proposals 106 and 107 and we were
17 waiting for an amendment, I believe, which is on the
18 table. All right. We already have one amendment on the
19 question, and we have a question about that, Commissioner
20 Hawkes. We are square.
21 There's one amendment and you should have it. It's
22 not very long. That's it, isn't it? All right.
23 Commissioner Hawkes, you are recognized on the amendment,
24 and then however you want to proceed from there.
25 Everybody remember what the proposal is? This was a
238
1 proposal that was explained by Commissioner Hawkes before
2 we moved to this last item. And I'm going to allow him
3 the leeway of refreshing your memory as to what he's
4 trying to do and then what the amendment does.
5 Commissioner Hawkes.
6 COMMISSIONER HAWKES: What we talked about last time,
7 22 of you felt that some of these issues, when private
8 enterprise or private sector individuals use government
9 property, that the Legislature should have an opportunity
10 to determine that some of these are -- serve a valid
11 public purpose and should be off of the tax roll and want
12 to create the authority in the Constitution for that to
13 happen, what this does is it gives the Legislature all of
14 the authority, because it removes the immunity from
15 counties and puts everybody on the level playing field
16 that was so desirable during the debate. This is truly a
17 level playing field and this allows the Legislature to
18 look at all of these issues and decide when to grant an
19 exemption from ad valorem taxation.
20 CHAIRMAN DOUGLASS: Commissioner Hawkes, we are going
21 to get a little order here and I'm going to ask them to
22 read the amendment, which we didn't do. And I'm not
23 trying to interrupt your presentation, but I think I
24 better do it in the correct order. Everybody give your
25 attention, please. And read the amendment.
239
1 READING CLERK: By Commissioner Hawkes on Page 1,
2 Lines 19 through 27, delete those lines and insert, All
3 property owned by the State or any other governmental
4 entity and used exclusively by such governmental entity
5 for governmental or municipal purposes shall be exempt
6 from taxation. All property owned by governmental entity
7 and used for airport, seaport, or other public purposes
8 and uses that are incidental thereto may be exempted from
9 taxation by general law.
10 CHAIRMAN DOUGLASS: Go ahead. There is something
11 else on mine. It says, No immunity shall exist to the
12 extent that it is inconsistent with this subsection. All
13 right. That's it. Go ahead.
14 COMMISSIONER HAWKES: That's it, Mr. Chairman, it
15 just levels the playing field and lets the Legislature
16 look at all of these issues, and it's truly, if all of
17 those other arguments were valid, this is truly a valid
18 way to go if you think the Legislature needs to look at
19 some of these situations and decide what should be exempt
20 and what should not be exempt, and I would submit,
21 Commissioner Connor asked a question about, what about
22 private business now facing competition from government,
23 well, this gives an opportunity to take some of those
24 situations off if they don't serve a valid public purpose
25 as determined by the Legislature. I would ask for your
240
1 favorable consideration. Thank you very much.
2 CHAIRMAN DOUGLASS: I have one question, though.
3 What does the amendment do that your proposal didn't do?
4 COMMISSIONER HAWKES: My proposal, Mr. Chairman,
5 originally was, removed immunity and it didn't allow the
6 Legislature to -- it did not allow the Legislature to
7 exempt property. Now, the only property we are ever
8 talking about in any of these proposals is property that's
9 owned by government but used by a private, for-profit
10 entity. Mine did not allow the Legislature to look at
11 those situations and decide to exempt some of them.
12 The body has expressed a desire that the Legislature
13 should be allowed to look at those situations and exempt
14 appropriate situations. This adopts the wisdom of the body
15 and says, Let the Legislature look.
16 CHAIRMAN DOUGLASS: Very well. Now, Commissioner
17 Anthony.
18 COMMISSIONER ANTHONY: Thank you, Mr. Chair. As we
19 receive this proposal, we heard a lot of conversation
20 earlier about the Anthony/Henderson proposal. Let me make
21 it perfectly clear. This is diametrically opposed to the
22 vote that you made two hours ago. It does not seem as if
23 it was two hours ago, but it was almost two hours ago.
24 And I don't want you to forget that you made a vote, you
25 took a vote on a proposal that is diametrically opposed to
241
1 this proposal.
2 Now, we can dress it up any way we want to but if we
3 are going to be a state that moves toward the year 2000
4 new millennium, providing the opportunity for local
5 government, state government, counties and any entity
6 therein to be able to provide economic development, create
7 jobs in our state, provide a level playing field for all
8 governmental entities, this does not do it.
9 This in fact tears down everything that we have been
10 working for in our state. And so I don't want it to be
11 unclear that we -- this is diametrically opposed to what
12 we have already passed. It may sound different, it may
13 sound cleaner, it gives it back to the state Legislature
14 to review it, but it's in fact, the principles of it has
15 been changed, but in fact, it says the same thing in terms
16 of opposing totally what we have already passed.
17 CHAIRMAN DOUGLASS: All right. Commissioner Scott.
18 COMMISSIONER SCOTT: Amen. I would just say that
19 this does take away the immunity of the state, counties,
20 school districts and universities and that sort of thing,
21 and if you voted for the other proposal then you should
22 vote no on this proposal. And this amendment really
23 doesn't change the proposal other than take out some words
24 that I can tell. But regardless, it's diametrically
25 opposed, it was discussed at length. And we would urge
242
1 you not to adopt this proposal.
2 CHAIRMAN DOUGLASS: And the other proposal, somebody
3 moved to reconsider it, didn't they? Commissioner Connor,
4 you did I believe.
5 COMMISSIONER CONNOR: Yes, sir.
6 CHAIRMAN DOUGLASS: All right. Any further
7 discussion? Commissioner Barkdull.
8 COMMISSIONER BARKDULL: This is on the amendment.
9 CHAIRMAN DOUGLASS: Yes, sir. This is on the
10 amendment. Are you ready to vote on the amendment? All
11 in favor of the amendment, say yea; opposed?
12 (Verbal vote taken.)
13 CHAIRMAN DOUGLASS: Okay. We'll vote on the
14 amendment before we vote on the proposal. Open the
15 machine. This is on the amendment. I was in doubt of how
16 it really went. I really wasn't but I thought we better
17 mark it off.
18 (Vote taken and recorded electronically.)
19 CHAIRMAN DOUGLASS: All right. Now, we had 31 votes
20 last time, we have got 24 this time. We are voting on the
21 amendment. Has everybody voted? All right. Lock the
22 machine and announce the vote.
23 READING CLERK: Twelve yeas, 15 nays, Mr. Chairman.
24 CHAIRMAN DOUGLASS: All right. Now we are on the
25 original proposal by Commissioners Evans-Jones and
243
1 Commissioner Hawkes. Who wants to make a presentation?
2 Commissioner Evans-Jones, Commissioner Hawkes tried and
3 now it's your turn.
4 COMMISSIONER EVANS-JONES: Well, I think I will
5 probably do just about as well as Commissioner Hawkes this
6 time. I think you sent us a message, however, I'm sure
7 that all of you still have an open mind. What we were
8 trying to do was get rid of immunity, which was in the
9 original proposal. We were trying to level the playing
10 field as far as being competitive with private business.
11 I still think that it's tremendously unfair, just because
12 you are on county land or city land or anywhere else and
13 your neighbor is having to pay property taxes and you are
14 not.
15 And basically, that's what we were trying to do, to
16 make it fair for private enterprise. We are not talking
17 about taking anything away except those businesses who
18 were in there for profit should indeed pay taxes.
19 You are going to take away a great deal of money with
20 all of these tax exemptions that seem to be so extremely
21 popular in today's world. And what does that do to you
22 and me, the private person who pays ad valorem taxes? It
23 increases it, and that's what it's going to do. And these
24 businesses can well afford to pay their fair share. So, I
25 ask for your favorable vote on the initial proposal.
244
1 CHAIRMAN DOUGLASS: Proceed to vote on the proposal.
2 Unlock the machine and we'll vote.
3 (Vote taken and recorded electronically.)
4 CHAIRMAN DOUGLASS: Lock the machine and announce the
5 vote.
6 READING CLERK: Seven yea, 20 nay, Mr. Chairman.
7 CHAIRMAN DOUGLASS: All right. The next proposal we
8 were going to take up is No. 10 -- 58. Excuse me,
9 Proposal 41. We are going to get to you, Commissioner
10 Mathis.
11 COMMISSIONER MATHIS: Mr. Chair, I would like to
12 withdraw Proposal 41 -- not yet? Okay, we are holding on.
13 CHAIRMAN DOUGLASS: Okay. Commissioner, what do you
14 want to do with it?
15 COMMISSIONER BARKDULL: She wants to withdraw it.
16 CHAIRMAN DOUGLASS: Okay. Yeah, but he's telling her
17 not to and she's taking his instructions. You moved to
18 withdraw it.
19 COMMISSIONER MATHIS: No, I take back that movement.
20 I withdraw the withdrawal, there you go.
21 CHAIRMAN DOUGLASS: Shall I just call on Commissioner
22 Henderson? Commissioner Henderson instead of you,
23 Commissioner Mathis.
24 COMMISSIONER HENDERSON: Mr. Chairman, there's a
25 pending motion to reconsider the pending matter that we
245
1 need to vote on prior to putting it down. Then I'll
2 invite her to withdraw hers.
3 CHAIRMAN DOUGLASS: We'll take it up if the person
4 wants to.
5 COMMISSIONER HENDERSON: There's a pending motion to
6 reconsider.
7 CHAIRMAN DOUGLASS: That's right. Do you want to
8 take it up, Commissioner Connor? You don't have to, we
9 will take it up tomorrow morning or tomorrow.
10 COMMISSIONER CONNOR: If we won't be here tomorrow
11 morning, what I don't want to be is the guy that holds
12 them over.
13 CHAIRMAN DOUGLASS: All right. We are going to be
14 here tomorrow, and we are going to adjourn very quickly.
15 I have to adjourn to be out at FSU on a radio program.
16 COMMISSIONER CONNOR: I don't want to take it up
17 then.
18 CHAIRMAN DOUGLASS: All right. Commissioner
19 Barkdull.
20 COMMISSIONER BARKDULL: Mr. Chairman, we added to the
21 calendar this morning Proposal No. 58 in reference to the
22 age discrimination. That is the next item on the
23 calendar. I am not sure that we can conclude that by
24 5:00 o'clock. I would suggest that we stop the action on
25 proposals and have announcements and motions to reconsider
246
1 and so forth.
2 CHAIRMAN DOUGLASS: All right. What we are going to
3 do is we are going to cease operation here and have
4 announcements and then we are going to adjourn until
5 tomorrow morning at 9:00 o'clock. Commissioner Barkdull.
6 COMMISSIONER BARKDULL: I have several items.
7 CHAIRMAN DOUGLASS: Pay attention, please.
8 COMMISSIONER BARKDULL: Mr. Chairman, Members of the
9 Commission, I would like to move that all items that are
10 on reconsideration, Nos. 2, 6, 144, and 172, on today's
11 calendar be carried over until tomorrow.
12 CHAIRMAN DOUGLASS: Without objection, they are.
13 COMMISSIONER BARKDULL: I would now like to move to
14 reconsider Proposition 168 which modified the Cabinet for
15 the purpose of offering a housekeeping amendment tomorrow.
16 One sixty-eight, we passed yesterday amended.
17 CHAIRMAN DOUGLASS: All right. And you move to
18 reconsider it?
19 COMMISSIONER BARKDULL: Yes, sir.
20 CHAIRMAN DOUGLASS: All right. So, it's carried over
21 until tomorrow.
22 COMMISSIONER BARKDULL: Now I would like to announce
23 that there is no Rules and Calendar Committee meeting this
24 afternoon. Does anybody have anything that they want to
25 withdraw that's left on this calendar?
247
1 CHAIRMAN DOUGLASS: If you do, now is the time.
2 COMMISSIONER BARKDULL: I want to say that sovereign
3 immunity and Article V will be early up tomorrow morning.
4 CHAIRMAN DOUGLASS: That is correct. Commissioner
5 Riley.
6 COMMISSIONER RILEY: Mr. Chairman, I would like to
7 move to reconsider Proposition 13.
8 COMMISSIONER BARKDULL: Which one was it?
9 COMMISSIONER RILEY: That was Commissioner Brochin's
10 proposal on the death penalty.
11 CHAIRMAN DOUGLASS: Okay. That was adopted
12 yesterday, right?
13 COMMISSIONER BARKDULL: Yes.
14 CHAIRMAN DOUGLASS: Okay. So, that is done and it's
15 carried over until tomorrow.
16 COMMISSIONER ZACK: Mr. Chairman, point of
17 information. Commissioner Barkdull, did you say Proposals
18 172 and 162 will be heard tomorrow, they have been carried
19 over on the Reapportionment Commission?
20 COMMISSIONER BARKDULL: That is the Legislative
21 Reapportionment Commission?
22 COMMISSIONER ZACK: Yes.
23 COMMISSIONER BARKDULL: Yes, sir.
24 CHAIRMAN DOUGLASS: There's been a motion to
25 reconsider to be carried over until tomorrow along with
248
1 the other motions to reconsider. And he announced that
2 tomorrow, early on, we'll be taking up sovereign immunity
3 and Article V costs.
4 COMMISSIONER BARKDULL: Could I ask Commissioner
5 Anthony to take the floor and I'll ask him a question,
6 please?
7 CHAIRMAN DOUGLASS: Commissioner Anthony.
8 COMMISSIONER ANTHONY: I yield.
9 COMMISSIONER BARKDULL: Commissioner Anthony, I
10 notice you have gotten up, and we didn't reach it today,
11 Proposal No. 46. I think you indicated that you wouldn't
12 be here tomorrow. I know that relates to sovereign
13 immunity. Do you want to leave that on or --
14 COMMISSIONER ANTHONY: Thank you, Mr. Chair. I will
15 be here tomorrow. I'll start my life off in the wrong
16 direction with my future mate and I --
17 CHAIRMAN DOUGLASS: Well, I don't know if that's a
18 good idea or not, a lot of them go that way anyway, you
19 know. But you will have better luck, Commissioner
20 Anthony, and we'll all send you an extra present. Now,
21 anything else?
22 COMMISSIONER BARKDULL: I move we recess until
23 9:00 a.m. tomorrow morning.
24 CHAIRMAN DOUGLASS: Okay. It is done.
25 (Session adjourned 5:00 p.m.)
249
1 CERTIFICATE
2
3 STATE OF FLORIDA:
4 COUNTY OF LEON:
5
WE, JULIE L. DOHERTY, KRISTEN L. BENTLEY and
6 MONA L. WHIDDON, Court Reporters, certify that we were
authorized to and did stenographically report the foregoing
7 proceedings and that the transcript is a true and complete
record of our stenographic notes.
8
9 DATED this ______ day of ____________, 1998.
10
11
_________________________________
12 JULIE L. DOHERTY, RPR
13
14 _________________________________
KRISTEN L. BENTLEY
15
16
_________________________________
17 MONA L. WHIDDON
Court Reporters
18 Division of Administrative Hearings
1230 Apalachee Parkway
19 Tallahassee, Florida 32399-3060
(850) 488-9675 Suncom 278-9675
20 Fax Filing (850) 921-6847
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