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The Legal Satyricon Guide to Florida's Constitutional Amendments

After a week of wrangling, the Florida-based Satyriconistas have prepared the following Legal Satyricon Guide to the Florida Constitutional Amendments:

Amendment 1 – VOTE YES

Relating to Property Rights/Ineligible Aliens

Proposing an amendment to the State Constitution to delete provisions authorizing the Legislature to regulate or prohibit the ownership, inheritance, disposition, and possession of real property by aliens ineligible for citizenship.

Vote YES on 1 – Opinion by Randazza joined by Warrington, Papantoniou, Blevins, and Harbin

Back in the 1920s, in an effort to institutionalize racism against Asian immigrants, the Florida Constitution was amended to grant the legislature the right to prohibit “aliens ineligible for citizenship” from owning real property. Since then, this provision has been un-used, and any law based upon it would be un-enforceable. Many states passed similar “alien land laws”, but Florida is the last state in the Union to leave such a provision on its books. While Amendment 1 won’t functionally change anything, if it passes, it will demonstrate that Flori-duh is not the same bigoted backwater that it was in 1926.

Amendment 2

The Florida “Marriage Protection” Amendment

This amendment protects marriage as the legal union of only one man and one woman as husband and wife and provides that no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.

Vote NO on 2 – VOTE NO – Opinion by Randazza joined by Warrington, Papantoniou, and Harbin

The government does not belong in the marriage business. Any two people should be able to form a domestic partnership, regardless of gender, and they should be granted equal rights under the law regardless of the reason, shape, or form of that two-person union. It is not the proper function of government to define personal relationships. More importantly, constitutional amendments to restrict personal rights rather than protect them are a dangerous practice. This amendment is nothing more than institutional bigotry and should be rejected.

Vote NO on 2 – Concurrence by Blevins joined by Warrington and Randazza.

Marriage is a religious institution that evolved into a right of passage for a loving relationship. Creating an exclusive class of citizens violates the idea of Equal Protection of the laws and the Right to Privacy. The creation of an excluded class of citizens, creates a group of second class citizens based on sexual preference. The allowance of “domestic partnership” or “civil unions” is not enough. Everyone should be allowed to formally marry. The future impact on inheritance, taxes, adoption and child rearing will be catastrophic, and it is not just about homosexuals. See No on 2 Website.

Vote No on 2 – Additional Commentary by Randazza

If the civil rights angle does not persuade you to vote NO on 2, there is a legitimate reason for even the most homophobic Floridian to vote against this measure. Look carefully at the language. This will also prohibit domestic partnerships such as heterosexual couples who can not marry or who choose not to. Most importantly, elderly couples who may be “coupled up” in their twilight years will be similarly victimized. See No on 2 Website.

Amendment 3 – VOTE YES

Changes and Improvements Not Affecting the Assessed Value of Residential Real Property

Authorizes the Legislature, by general law, to prohibit consideration of changes or improvements to residential real property which increase resistance to wind damage and installation of renewable energy source devices as factors in assessing the property’s value for ad valorem taxation purposes. Effective upon adoption, repeals the existing renewable energy source device exemption no longer in effect.

Vote YES on 3 – Opinion by Warrington joined by Papantoniou and Harbin

This constitutional provision would benefit homeowners without unnecessarily increasing the financial burdens of the State. Florida homeowners should be encouraged to protect their residences against hurricane-force winds. The use of alternative, and renewable, energy sources should be promoted. This amendment allows property tax incentives for homeowners seeking to invest in their homes and in technology.

Vote YES on 3 – Concurrence by Randazza

This is only a lukewarm concurrence. While I agree with the opinion above, I am not convinced that this will benefit many homeowners. Ad valorem taxes are a key source of income for Florida’s municipalities. This measure will wind up providing a tax incentive to purchase costly home improvements – which will likely only be purchased by those who need a tax cut the least. I still support this measure, but I am uncomfortable with its likely regressive effect. If the state truly wishes to influence behavior to minimize the damage from hurricanes and to encourage energy conservation, we would be better off discouraging private development of beachfront property – leaving beachfronts open to the public, and by encouraging the development of public transportation instead of being the Hummer state.

Amendment 4 – VOTE NO

Property Tax Exemption of Perpetually Conserved Land; Classification and Assessment of Land Used for Conservation

Requires Legislature to provide a property tax exemption for real property encumbered by perpetual conservation easements or other perpetual conservation protections, defined by general law. Requires Legislature to provide for classification and assessment of land used for conservation purposes, and not perpetually encumbered, solely on the basis of character or use. Subjects assessment benefit to conditions, limitations, and reasonable definitions established by general law. Applies to property taxes beginning in 2010.

Vote NO on 4 – Opinion by Randazza joined by Blevins and Harbin

At first blush, this sounds like a great idea. The Sierra Club endorses it, and I often agree with the Sierra Club’s policies. It would create a property tax exemption for privately-owned land that is reserved for conservation purposes, discouraging its sale for other uses. Sounds great, no? Perhaps in theory, but I smell a rat. For example, Florida allows land-owners to be taxed at a lower rate if they use their property for “agricultural” purposes. The result? Sure, the few farmers that are left in Florida get a tax break, and I think that is a wonderful thing. On the other hand, developers buy land and throw a few cows on it (cows they lease for this specific purpose) so that they don’t need to pay the proper taxes on the land.

Amendment 4 will likely result in the same thing. Wealthy land-owners will draw a ring around their house and perpetually designate their front yards and their pony runs as “conservation” area. Therefore, the richest estate owners in Florida will find yet another way to screw the rest of us by making us subsidize their yards. Corporate land owners will do no better – tagging undevelopable chunks of land as “conservation.”

Vote NO on 4 – Concurrence by Warrington

Likewise, I am skeptical about 4. There are two additions to the current constitutional provision: one, it mandates a full-value property tax exemption for property eternally dedicated for conservation purposes; and two, it states that such conservation property shall be assessed a tax value based on its use rather than its fair market value. (Use valuation typically, but not always, ends up with a lower valuation.) There are competing goals here: encourage conservation of land or preserve the tax base? Personally, I think this provision has more of a potential to benefit large corporations simply looking for a tax write off, rather than the average consumer.

Amendment 6 VOTE YES

Assessment of Working Waterfront Property Based Upon Current Use

Provides for assessment based upon use of land used predominantly for commercial fishing purposes; land used for vessel launches into waters that are navigable and accessible to the public; marinas and drystacks that are open to the public; and water-dependent marine manufacturing facilities, commercial fishing facilities, and marine vessel construction and repair facilities and their support activities, subject to conditions, limitations, and reasonable definitions specified by general law.

Vote YES on 6 – Opinion by Randazza joined by Blevins and Harbin

While this seems similar to Amendment 4, it has less of a likelihood that it will be abused. Keeping some of the waterfront preserved for commerce, rather than building condominiums on every last piece of waterfront in Florida, is a good thing. This will allow waterfront to be taxed under its “working waterfront” value, rather than at its “raped and turned into a retirement community for billionaires from Europe” value.

Vote Toss Up – Concurrence/Dissent by Warrington

I can’t say I have much of an opinion either way. The amendment mandates use valuation rather than fair market valuation for waterfront properties. Somehow, I think that would decrease the value of the property (thus the ultimate amount of the property tax). But I don’t know if that’s the case. And I don’t particularly know who would benefit and who would be harmed.

Papantoniou and Lea are still studying this issue and their thoughts will be included when available.

Amendment 8 – VOTE “PICK ‘EM”

Local Option Community College Funding

Proposing an amendment to the State Constitution to require that the Legislature authorize counties to levy a local option sales tax to supplement community college funding; requiring voter approval to levy the tax; providing that approved taxes will sunset after 5 years and may be reauthorized by the voters.

Vote YES on 8 – Opinion by Papantoniou joined by Warrington

When speaking on the matter of public education (in this instance community colleges), I believe that by amending the Fla. Constitution to mandate that the state give authorization to counties to levy an optional sales tax in order to supplement current funding for local community colleges is a good idea for a few reasons: (1) The amendment’s language specifically states that any county that wishes to leverage such a tax, would first have to have the levy approved by the counties’ voters… this puts more control in the hands of local government and voter’s hands, to build up public education facilities and cut costs for those who wish to take the primary steps in gaining higher education, by levying a sales tax. Who knows the needs of local community colleges better, the state government, or county government and voters? I’ll take the small guy, every time; (2) The miniscule amount that a sales tax, could and would rise, would never be noticed by the people living in the county, who again, would first vote whether to levy such a tax anyway; and finally, (3) the sales tax for education authorized by a county’s local government and voters would automatically sunset after 5 years, leaving the choice to renew the authorization, back in the voter’s hands and not the state government.”

Vote YES on 8 – Concurrence by Randazza joined by Harbin and Warrington

This amendment does not mandate funding community colleges. It simply authorizes local communities to add a sales tax to fund their community colleges. The county’s voters, who will overwhelmingly shoulder the burden of the tax, will have the final say as to whether the tax is levied. I do not concur with rationale #2, above, as I do not believe that the amount of the tax should be at issue. However, I do concur with point 3, above, which builds an automatic “sunset” into the tax – thus putting educational institutions on notice that they won’t necessarily get the tax forever, without local support. I think that this very well may make community colleges provide greater public outreach, thus increasing enrollment. The greater the enrollment in higher education, the less we will be Flori-duh.

Vote NO on 8 – Dissent by Blevins

The financial success of a academic institution should depend on the free market. The free market is both financial and academic. If a school is forced to compete for students, grants, faculty, etc. the school will improve. The improvement in the academic resume of the school will naturally lead to financial viability. However, I will fully address the published opinion of my fellow Satyriconistas.

As to rationale #1, it is a form of double tuition. The demographic for community colleges is typically non-traditional. Thus, the students will be charged a formal tuition from the school and an informal tuition from the county as a tax. Also, members of the community who may never set foot on the campus are forced to subsidize a failing school.

Rationale #2 is dangerous. A minimal tax is a tax. It does not matter the individual impact. If an individual want to support a community college and not burden fellow citizens, make a private grant, trust, gift, or benefit to the school.

Rational #3 is dishonest. First, it is difficult to remove legislation once it is passed. Second, the individual citizen will not be privy to the financial records of the institution. Thus, the citizen will not be informed as to whether the tax should remain in force. I will not support a “no community college left behind” amendment.

Note: We did not forget about Amendments 5, 7, and 9. They were removed from the ballot by the Florida Supreme Court.

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