2008 Florida Amendments: Revisited

In 2008, Florida voters expected to see nine constitutional amendments on the November ballot. Instead, three were removed prior to election day leaving six proposed amendments on the ballot.

Amendment 1: Property Rights of Ineligible Aliens

Failed: 47.9-52.1 percent

The Legislature sponsored this proposed change to Florida's Constitution. This amendment would have removed language from the Florida Constitution that allows the state to regulate property rights of "aliens" ineligible for citizenship. The provision that would have been deleted is part of Article 1, Section 2, Basic Rights.

In general, the clause requires the state to treat everyone equally, but it includes an exception: "that the ownership, inheritance, disposition and possession of real property by aliens ineligible for citizenship may be regulated or prohibited by law."

In 1926, Florida lawmakers inserted the clause after several other states adopted "alien land laws" out of concern that Asian farmers were taking over American farmland. The Florida Legislature, which never passed such laws, proposed to remove the exception from the state Constitution. Lawmakers voted in 2007 to put this measure on the ballot. (The vote in the Senate was unanimous; in the House it was 83-31.) This is the only amendment placed on the 2008 ballot with a vote by the full Legislature. If it had been approved by 60 percent of the voters it would have taken effect on Jan. 6, 2009. There was no organized opposition to the amendment.

This is the resolution passed by the Legislature:

Constitutional Amendment Article I, Section 2 . This is how the amendment will look on the ballot: DECLARATION OF RIGHTS -- 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.

Why delete the provision?

Florida is the only state with a so-called "alien land law" provision still in its constitution. According to a PBS analysis, 13 states passed such laws. California rescinded its law in 1956; Wyoming and Kansas repealed theirs in 2001 and 2002, and New Mexico voters deleted a measure from their constitution in 2006.

Even though the provision remains in the Constitution, it may be unusable. That's because the law was written to discriminate against Asian immigrants, and since then the courts have found such race-based discrimination laws to be unconstitutional, according to a nonpartisan analysis conducted by the Senate Judiciary Committee last year.

How we got here

Throughout the 1920s, the U.S. Supreme Court upheld "alien land laws." But in 1946, California voters defeated a proposal to extend its law, and in 1948, the U.S. Supreme Court rendered a decision that stopped short of overturning California's law but made it unenforceable. Five months later, the same court went even further in protecting the rights of aliens; Justice Hugo Black wrote for the majority that the equal protections of the Fourteenth Amendment apply to aliens as well as citizens.

Over the next decade, the supreme courts of California, Oregon, and Montana held that alien land laws were invalid because they discriminated based on race, according to the Florida Senate's analysis. Those courts also held that such discrimination is prohibited by the Fourteenth Amendment to the U.S. Constitution, which guarantees equal protection.

In 1952, Congress passed the Immigration and Nationality Act, which wiped out all racial restrictions on who can become a U.S. citizen. Florida's "Alien Land Law"In 1926, Florida lawmakers amended the Constitution of 1885 to add the "alien land" provision into the equal protection clause. The 2007 Senate Judiciary analysis quoted a St. Petersburg Times article from 1925 that reported the motivation behind the addition: "Senator Calkins stated that the provisions of the measure followed closely those of the California plan. He said that there seemed no necessity for such regulation at present but it was well to provide for it now, in anticipation of future contingencies."

At issue: What does "ineligible for citizenship" mean? There is agreement among law scholars and the Senate analysis that because Florida's constitutional provision was race-based in the way it determined aliens ineligible for citizenship, courts would declare it unconstitutional if it were ever used. This is Sen. Geller's view, as well. Using this argument, that the law is racially discriminatory and based on old definitions of "ineligible aliens," they distance the amendment from the current political debate on how to stem illegal immigration. One has nothing to do with the other, they say, because immigrants are no longer barred from citizenship based on their race. "Ineligible aliens," they argue, have no legal relationship to people regarded as "illegal immigrants," who enter the country illegally.

A nonpartisan analysis by the Florida House, however, took a different tack. It listed all the categories of immigrants currently considered by federal law to be ineligible for citizenship. Those include drug traffickers, people with certain communicable diseases and terrorists. The House analysis concluded that if the amendment were to fail, lawmakers could arguably prohibit immigrants who came here illegally or who fall into those other categories from owning property in Florida.

The players

Amendment 2: Marriage Protection

Passed: 62.1-37.9 percent

A move to ban gay marriage, or something with other consequences?

Its opponents said the amendment would not only prevent gay couples from marrying in the state, but also would have consequences that deny basic privileges to all unmarried couples, even seniors who choose to live together because matrimony would devastate them financially.

Critics argued that Florida law already prohibited gay marriages.

That might be true, amendment supporters countered, but laws can be struck down in court, as happened in California, where the state Supreme Court ruled that same-sex marriage was legal. (It was ultimately banned by a constitutional amendment.)

A Florida amendment, its proponents said, would strengthen the state's prohibition against same-sex marriage. They said the other objections were a smokescreen "to scare senior citizens into thinking that their ‘benefits' will be taken away.”

Amendment 2, the main proponents said, "is about one thing, and one thing only — it defines marriage as the union of a man and a woman and does not interfere with anyone's benefits.”

Opponents' true objective was to "legalize gay marriages,” the group said.

Here is the summary of Amendment 2 as it appeared to voters in November 2008:

"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.”

The full text is essentially the same wording: "Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized."

The players

Florida4Marriage.org was formed in early 2005 to begin collecting the 611,000 valid petition signatures necessary to put the amendment proposal before voters. Its biggest donor was the Republican Party, which donated $150,000 in November 2005 and again in February 2006, according to records filed with the Florida Department of State Division of Elections.

The opposition to the amendment was led by Florida Red and Blue, a political action committee headed by Jon Kislak of Miami Shores, a principal of Antares Capital Corp., a privately held venture capital firm. The PAC was formed in April 2007, and its biggest donor was Donald Burns, a West Palm Beach businessman who gave $250,000 on July 29, 2007, and $100,000 on July 30, 2008. Florida Red and Blue is affiliated with another PAC, Fairness for All Families.

Florida4Marriage, on its Web site, Yes2marriage.org, said it believed "that the institution of marriage serves both a personal and a public purpose within our society. As such, our public policy should promote healthy and strong marriages, rather than seek to create new definitions of marriage that undermine the institution's role and which are not in the best interest of children.”

On its Web site, Florida Red and Blue defined itself as "the nonpartisan, independent campaign dedicated to defeating the so-called ‘marriage protection' amendment. "This intrusive amendment to the Florida Constitution will take away long established rights for ALL nonmarried Floridians.”

Amendment 3: Residential Property Tax Break

Passed: 60.4-39.6 percent

The measure authorizes the Legislature to give homeowners a small property tax break for making hurricane-protection improvements and installing renewable energy source devices.

The amendment allows lawmakers to exempt storm shutters and hurricane wind-resistant windows, shingles and doors from property tax assessments. The Legislature could also exempt homeowners' energy-saving add-ons, particularly solar water-heating systems.

Opponents of the constitutional change said local governments would lose even more money during already tight economic times. The individual savings, they argued, are minuscule, and the tax break wouldn't help homeowners who've already invested in storm-hardening or energy-saving gear.

In its rundown of the proposed amendment, the League of Women Voters of Florida listed the benefits of the amendment as improved hurricane safety in residential property, higher property values and a lifted burden on nonrenewable energy sources. The cons, on the other hand, include a loss of local revenue, minimal individual savings and no exemptions for new construction.

The history

In news reports, the commissioners seemed confident of the amendment's adoption, which required approval of at least 60 percent of Florida's voters. The proposal met two of the state's top priorities, hardening homes and using less energy, the commissioners said during their meetings, and could reduce state costs in the long term.

Without changes in property tax rates, though, the amendment could diminish tax revenues to local governments, according to the commission's Staff Analysis and Economic Impact Statement.

The commission's proposals call for replacing an existing constitutional amendment — Article VII, Section 3 (d) — and a statute passed by the Legislature in 1980 that authorized a 10-year property tax exemption for the value of renewable energy devices installed in homes. While the statute, of course, expired in 1990, the amendment still appears in the state Constitution.

Legislators tried to revitalize the statute in 2007, within the lengthy House Bill 7123, calling for another 10-year exemption for homeowners (equal to the original cost of the energy-saving device, including installation). But the bill was later vetoed by Gov. Charlie Crist, who said it "didn't go far enough."

In June, however, Crist approved a new energy bill, which revamped the renewable energy device property tax exemption for another 10 years, effective Jan. 1, 2009.

The Legislature has yet to pass a bill that deals with property tax exemptions for storm-hardening improvements.

Amendment 3 is expected to save taxpayers a total of at least $3.44 million in the first year, almost all of it from storm-hardening improvements. Individual savings, however, are likely to be minimal — an average of $15.26 a year, according to news reports.

Figures from the Legislature for energy-saving improvements are not available, but the Florida Solar Energy Research & Education Foundation estimates that homeowners have saved more than $1 million on their utility bills each year from 1978 to 2006 with the installation of solar water and pool heating systems.

The total value of solar equipment installed during the same period topped $1 billion, the foundation said.

The amendment's tax break does not apply to new construction or homeowners who have already retrofitted their homes with renewable energy or storm-hardening devices. But the benefit may apply to rental apartments and second or vacation homes, as well as homesteads.

The measure is separate from previous federal and state tax incentives, such as the Energy Policy Act of 2005, which gave homeowners up to $500 in tax credits for making energy-efficient improvements to their residences.

The fine print

"The full text is available here.

Along with the amendment, the Taxation and Budget Reform Commission recommended a new statute that would prohibit property tax assessment increases because of "storm-hardening improvements" or the "installation and operation of a renewable energy source device.

• Hurricane-resistant shingles.
• Gable-end bracing.
• Reinforced roof-to-wall connections.
• Storm shutters.
• Impact-resistant glazing.
• Hurricane-resistant doors.

Losing too much tax revenue?

They said the $3.44 million in taxpayer savings should go to other public sectors already in budget peril.

Revenue loss is a real concern, says a University of Central Florida economist. "We're already seeing local governments getting hit with revenue shortfalls because of the housing market," said Sean Snaith, director of the Institute for Economic Competitiveness at the university. "This amendment would just cause another loss of potential revenue that the governments would have to come up with somehow. It would put additional stress on already shrunken budgets at the local level.

"The Florida AFL-CIO and its 526 affiliated unions opposed Amendment 3, the group said in a statement:

"We support any policy that helps Floridians secure their homes against storm damage… However, our careful monitoring, analysis and advocacy efforts in the Legislative process have led us to believe with all certainty that Florida is in the midst of a budget crisis that is unprecedented in our state's history, and that many of our elected officials have yet to admit the severity of the problem to the public. We believe that these amendments (3 and 4) in the current context will exacerbate this problem." (Amendment 4, which also passed, gives landowners a tax break for conservation.)

Until the state Legislature comes up with a "comprehensive plan to solve Florida's budget crisis… it is unlikely that the Florida AFL-CIO will endorse any tax cuts, regardless of their potential merit," they said.

Giving residents incentives

While many groups were slow to formally campaign for the measure, many said they supported its purpose.

"The idea of hardening homes and doing mitigation we're fully in support of," said Gary Landry, vice president of the Florida Insurance Council, which had not released an opinion on the amendment.

Neither had the office of Alex Sink, Florida's chief financial officer, who oversees the Department of Financial Services and the My Safe Florida Program, which offers residents home-hardening grants and free wind inspections.

Still, many supported the property tax exemptions because they would give residents further incentives to fortify their homes against storms and avoid costly bills from repairs and rising energy prices.

Florida TaxWatch released this statement from its president and CEO, Dominic M. Calabro:

"Strengthening residential structures is critical in Florida because we can't control when and where hurricanes occur and how strong they are when they hit, but we can control how we prepare for them and we can encourage owners to fortify their property against these natural and destructive occurrences. The property tax incentives in this proposal are a reasonable way of achieving an important public policy objective.

"The Florida Chamber of Commerce and the Florida Association of Realtors backed the amendment."It's a good public policy, and we support it unofficially (right now)," said Trey Goldman, the Realtors' legislative counsel.

Amendment 4: Land Conservation Tax Break

Passed: 68.4-31.6 percent

Amendment 4 supporters hope it encourages landowners to conserve more land, help expand wildlife habitat and protect water resources.

Opponents were concerned about the impact of taking thousands of acres of land off the tax rolls at a time when local and state governments are strapped for cash, laying off employees and cutting back on already underfunded services.

The measure provides a full property tax exemption to landowners who agree to place property in a "conservation easement" forever. Such easements restrict how land can be developed and are aimed at keeping property in its natural state.

The measure also requires that land "used for conservation purposes" be classified and assessed that way, a move that lowers – but does not eliminate – the property taxes a landowner must pay.

This amendment relates to land that is covered under a conservation agreement for a limited time.

The constitutional amendment was placed on the ballot by the Florida Taxation and Budget Reform Commission, a group that has the authority to call for votes on amendments every 20 years. The commission, with one member objecting, also made the decision to combine both proposals into one amendment.

Passage required approval by at least 60 percent of the voters. The measure applies to property taxes beginning in 2010.

Because the amendment involves voluntary participation by landowners, it is not clear how many acres could potentially be affected or what the property value of that land taken off the tax rolls might be.

The players

"As Florida grows, valuable habitat is being converted to other uses. In many cases local property taxes lead people, who would otherwise manage their land for wildlife and water protection, to convert it to other uses," according to an endorsement statement by Citizens for Conservation Land, a political action committee led by Preston Robertson, vice president and general counsel for the Florida Wildlife Federation.

Florida AFL-CIO members voted overwhelmingly to oppose Amendment 4 even though they "certainly support efforts to increase land conservation in our state to protect our unique and fragile environment." They contend that Amendment 4 is irresponsible at a time when the state isn't adequately funding important programs and services for its citizens.

"Our careful monitoring, analysis and advocacy efforts during the legislative process have led us to believe with all certainty that Florida is in the midst of a budget crisis that is unprecedented in our state's history, and that many of our elected officials have yet to admit the severity of the problem to the public. We believe that these amendments (3 and 4) in the current context will exacerbate this problem," the AFL-CIO said. Amendment 3, also approved in 2008, provides another tax break, this one for homeowners who add storm protection or install energy-saving devices.

For Florida TaxWatch, "whether or not this amendment works for Florida will depend largely on how the Legislature implements it." Florida TaxWatch says that increasing the amount of conservation land is a "legitimate public policy objective" but cautions that the Legislature will need to limit abuse as much as possible and should consider the potential for significant losses in revenue for rural counties.

The Florida Chamber of Commerce and the Florida Association of Counties supported Amendment 4 before the 2008 election, while the Florida League of Cities did not take a position.

Amendment 6: Waterfront Tax Break

Passed: 70.5-29.5 percent

During Florida's recent period of rapidly rising real estate values, fueled by investors and speculators and generally pegged as having peaked in late summer 2006, the lure of a big payoff prompted owners of some working waterfront properties to sell to developers of hotels, condominium towers and other such ventures.

Those who didn't sell discovered that, depending on the methods of their local property appraisers, they owed taxes not just on an existing business, but based on the parcel's value if a hotel or condo tower were built on it – the "highest and best use.”

Businesses appraised in this manner sometimes saw their annual tax bills rise so high that they could not afford to pay. As a result, some sold to developers; others went out of business.

After the state's real estate market began its steep decline, owners of the working waterfront businesses that remained found that the option of selling no longer existed or was not practical.

Passage of Amendment 6, supporters say, will give property tax relief to those owners of marinas, bait shops and boatyards.

Florida Statute 342.97 defines a "commercial working waterfront” as "a parcel or parcels of real property that provide access for water-dependent commercial activities.”

The ballot summary for Amendment 6 read: "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.”

The highest and best use provision used by county tax appraisers is mandated by state law 193.011, but it is complex and subject to interpretation. It is one of eight factors an appraiser must take into consideration when calculating the taxable value of a property. The other factors are: the present cash value of the property; its location; the quantity or size of the property; the cost of the property and the replacement value of any improvements to it; its condition; any income derived from the property; and net proceeds of any sale of the property.

House Bill 909, passed by the state Legislature in 2007, is designed to prevent property appraisers from increasing the tax assessments of low-end properties such as small motels and marinas to their "highest and best” use because they are in high-value waterfront areas. The higher assessments would be permitted only if a property can legally be put to a higher and better use, meaning that it has the proper zoning and permits, sufficient roads and utility connections. These restrictions are new. Gov. Charlie Crist signed the bill, and it became law on Sept. 1, 2008.

The constitutionally mandated Taxation and Budget Reform Commission proposed what is now Amendment 6 to complement that law and rectify what some see as an inequitable taxation system, after the panel held a series of public hearings across the state in late 2007.

The commission was the author of seven of the nine constitutional amendments originally proposed for the November ballot. One of the remaining two is a citizens' initiative and the other was placed on the ballot by the Legislature.

Opposition to Amendment 6 was hard to find. Those who could be most negatively affected by the new rules or the potential loss of tax revenue – local governments and school districts – devoted their resources to defeating Amendment 5, another measure put on the ballot by the Taxation and Budget Reform Commission. That amendment would have lowered property taxes, but it would also have completely changed the way public education in Florida is funded.

A coalition of business, government and education groups filed a lawsuit in Leon County Court to remove No. 5 from the ballot. A Leon County Circuit Court judge ruled in their favor, but the decision was appealed, and on Aug. 19, the 1st District Court of Appeal agreed to pass the case directly to the state's high court without a ruling.

On Sept. 3, the Florida Supreme Court unanimously ruled to strike the proposal from the ballot, along with Nos. 7 and 9, which addressed the state's school voucher system and other issues.

Amendment 6 remained on the ballot. Supporters of Amendment 6 include Realtors, taxpayer advocacy groups and government officials.

Florida Chief Financial Officer Alex Sink, addressing the Marine Industries Association of South Florida, said in November 2008, "I don't know where the idea came from to evaluate property as the highest and best use, as that is the most ridiculous idea I've ever heard of. There doesn't need to be 40-story condominiums on every corner of waterfront land in the state.”

Martha W. Cleaver, executive director of the Florida Association of Property Appraisers, said in an e-mail that her association supported Amendment 6. She pointed out that Ken Wilkinson, Lee County's property appraiser and a commissioner on the Taxation and Budget Reform Commission, initially brought the issue before the commission on behalf of the association.

Kurt Wenner, director of tax research for Florida TaxWatch, a private, nonpartisan, nonprofit tax research institute, said in a statement, "As development interests increasingly encroach upon or buy such properties and convert them to high-value residential properties such as high-rise condominiums or high-end retail properties, the ‘highest and best use' valuation standard threatens the economic viability of working waterfronts with high taxes which drive working waterfronts to convert to their ‘highest and best use.'

"Florida TaxWatch finds that Amendment 6 is an appropriate and sufficient way to correct an unintended and unfortunate consequence of the ‘highest and best use' element of the property tax system with regard to the economic viability of our state's critical waterfront business community.”

The Florida Chamber of Commerce, on its Web site, said it supported Amendment 6.

Adoption of the amendment required the approval of at least 60 percent of voters; the vote was 70.5 percent in favor to 29.5 opposed. Should public sentiment change now that No. 6 has passed, voters would have to approve another amendment to override it.

Amendment 8: Community College Funding

Failed: 43.5-56.5 percent

Amendment 8 would have required the Legislature to pass a law giving counties the authority to levy a local option sales tax to supplement community college funding. The tax would then have to be approved by voters and would expire after five years. It could be renewed if voters reauthorized it.

The amendment would have required lawmakers to establish a process that the counties could use to submit the tax referendums to the voters. But it would have been up to the counties to decide whether to do so.

Money collected from the local option sales tax would have gone only to community colleges.

Community colleges that serve more than one county would have had to win approval from voters in each of the counties they serve. Colleges' service areas, designated by state rule and state statute, range from one county to five in more rural areas. If the tax were rejected in one county of the service area, the college could not collect the tax anywhere.

This amendment was one of seven originally placed on the 2008 ballot by the Florida Taxation and Budget Reform Commission; three of those were removed by the state Supreme Court. The panel was established by the state Constitution and meets every 20 years. It met for the first time in 2007. The commission has 25 voting members appointed by the governor, the Senate president and the House speaker. Its four nonvoting members are members of the Legislature.

Amendment 8 was popular with the commission; it voted 23-2 to put it on the ballot.

There was no organized opposition to the amendment.

The change is to Article VII, Section 9 of the state Constitution. The full text of the amendment is here.