ALACHUA COUNTY, Florida, etc., et al., Appellants, v. Dwight ADAMS, etc., Appellee, 702 So. 2d 1253

GRIMES, Senior Justice. This is an appeal from a decision of the First District Court of Appeal holding

chapter 94-487, Laws of Florida, to be an unconstitutional special act. Alachua County v. Adams, 677 So.2d 396 (Fla. 1st DCA 1996). We have jurisdiction under

article V,

section 3(b)(1) of the Florida Constitution. There are two provisions of the Florida Constitution relevant to the determination of this case.

SECTION 1. Taxation; appropriations; state expenses; state revenue limitation.— (

a) No tax shall be levied except in pursuance of law. No state ad valorem taxes shall be levied upon real estate or tangible personal property. All other forms of taxation shall be preempted to the state except as provided by general law. Art. VII, § 1(a), Fla. Const, (emphasis added).

SECTION 9. Local taxes.— (

a) Counties, school districts, and municipalities shall, and special districts may, be authorized by law to levy ad valorem taxes and may be authorized by general law to levy other taxes, for their respective purposes, except ad valorem taxes on intangible personal property and taxes prohibited by this constitution. Art. VII, § 9(a), Fla. Const, (emphasis added). As authorized by these constitutional provisions, the legislature has enacted the following general law: 212.055 Discretionary sales surtaxes; legislative intent; authorization and use of proceeds.—

(2) LOCAL GOVERNMENT INFRASTRUCTURE SURTAX.— (a)l. The governing authority in each county may levy a discretionary sales surtax of 0.5 percent or 1 percent.... (d)I. The proceeds of the surtax authorized by this subjection ... shall be expended ... to finance, plan, and construct infrastructure.... Neither the proceeds nor any interest accrued thereto shall be used for operational expenses of any infrastructure .... 2. For the purposes of this paragraph, “infrastructure” means: a.

Any fixed capital expenditure or fixed capital outlay associated with the construction, reconstruction,. or improvement of public facilities which have a life expectancy of 5 or more years and any land acquisition, land improvement, design, and engineering costs related thereto. § 212.055, Fla. Stat. (1995) (emphasis added). However, in 1994 the legislature enacted

chapter 94-487, Laws of Florida. This special law, applicable only to Alachua County, stated in pertinent part:

Section 1. In addition to the uses authorized by s. 212.055(2), Florida Statutes, the board of county commissioners of Alachua County and the municipalities of Alachua County may use local government infrastructure surtax revenues for operation and maintenance of parks and recreation programs and facilities established with the proceeds of the surtax. Ch. 94-487, Laws of Fla. (emphasis added). Thereafter, Alachua County and all of the municipalities within the county entered into an interlocal agreement specifying that the surtax proceeds be used to operate and maintain a county-wide recreational program. Dwight Adams, a citizen and taxpayer of the county, disputed the constitutionality of

chapter 94-487 and threatened legal action to enjoin the pending referendum on the surtax. Consequently, Alachua County and the City of Gainesville filed a declaratory judgment action, seeking a declaration of the legality of the surtax and the interlocal agreement. The trial judge held that

chapter 94-487, Laws of Florida, was an unlawful special act which purported to amend the county’s power to levy the local government infrastructure surtax in violation of

article VII,

section 1(

a) of the Florida Constitution. This judgment was affirmed by the First District Court of Appeal. Adams, 677 So.2d 396. Appellants point out that

article VII,

section 1(a), by its express language, relates only to the “forms of taxation.” They suggest that the “form” of the tax authorized by

section 212.055 is a sales tax, whereas the special act relates only to the purposes for which the revenues may be spent. Thus, they posit that while the county’s authorization to impose a surtax must be based on general law, the uses for which the proceeds may be expended can be changed by special law. To this argument, the court below stated: Appellants’ distinction between taxing and spending in this case is unpersuasive and largely semantic. As the Florida Supreme Court recently held in a different context, “the power of a municipality to tax should not be broadened by semantics .... ” State v.

City of Port Orange, 650 So.2d 1, 3 (Fla.1994). Adams, 677 So.2d at 398. We agree. The “form of taxation” rationale misconstrues

article VII,

section (l)(a). The overriding purpose of this

article is to make a constitutional division of tax revenues between those available for state uses and those reserved for local government. The phrase “all other forms of taxation” obviously refers to any tax other than those previously designated ad valorem taxes on real property and tangible personal property. This provision is designed to prevent the legislature from undermining non-ad valorem tax sources needed to support state government by the enactment of special laws authorizing local governments to impose non-ad valorem taxes for local purposes. Moreover, appellants ignore

article VII, section (9)(a), which does not contain the phrase “all other forms of taxation.” This provision permits the legislature to authorize counties to levy non-ad valorem taxes, of whatever form or description, but only by general law. A determination that a special law may allow a county to redirect the tax proceeds in a manner explicitly contrary to the general law which authorized the tax in the first place would clearly undercut the purpose of

article VII,

section 9(a). Appellants’ reliance upon Rowe v. Pinellas Sports Authority, 461 So.2d 72 (Fla.1984), is misplaced. Significantly, neither section (1)(

a) nor section (9)(

a) of

article VII of the constitution was ever mentioned in that opinion. Further, there was no argument that the tax revenues could not be pledged to pay off the bonds which would raise the money to be used to build a stadium. Rather, the point discussed was whether a special act could properly authorize these bonds to be issued by the Pinellas County Sports Authority rather than the county itself. The special act simply changed the manner in which the money would be borrowed.

The tax authorized by the general law was not altered because the tax revenues were still to be used for the purpose of allowing the stadium to be built. The cases of Wilson v. Hillsborough County Aviation Authority, 138 So.2d 65 (Fla.1962), and Kirkland v. Phillips, 106 So.2d 909 (Fla.1958), do not bear on the issue before us because they were decided prior to 1968 when the pertinent constitutional provisions were different from those in our present constitution.

Section 212.055(2) is a general law that authorizes counties to levy an infrastructure tax under precisely defined conditions. These conditions prescribe the rates of taxes, the uses for the revenue raised by the taxes, and the procedure to be followed for approving the taxes. To permit

chapter 94-487 to stand would convert subsection 212.055(2) into a general grant of sales tax authority to counties, subject only to the enactment of special law. If Alachua County can be authorized to levy the sales tax surcharge to fund operations and maintenance of facilities, then some other county can be authorized by special law to fund general governmental operations. This is the exact consequence that sections (l)(

a) and (9)(

a) of

article VII of the Florida Constitution were intended to prevent.

Chapter 94-487, which is a special act relating only to Alachua County, purports to amend

section 212.055(2), a general taxing statute, to levy the surtax for uses that are not only not permitted to any other county but are also positively prohibited to all counties. In the face of the unambiguous restrictions imposed by

article VTI,

section 1(

a) and

article VII,

section 9(

a) of the Florida Constitution, we declare

chapter 94-487 to be unconstitutional. We affirm the decision of the court below. It is so ordered. KOGAN, C.J., and SHAW, HARDING and WELLS, JJ., concur. OVERTON, J., dissents with an opinion, in which ANSTEAD, J., concurs.