TO: Representative Marshall Harris
FROM: Office of Counsel
SUBJECT: Effect of HB 1718 on the ad valorem taxing authority of Central and Southern
Florida Flood Control District
A real problem is created for Central and Southern Florida Flood Control District in the
area of ad valorem taxing authority by HB 1718.
Preceeding the legislation establishing Central and Southern Florida Flood Control Dis-
trict, a similar body, entitled Everglades Drainage District, performed many of the
same functions in South Florida. Considerable litigation ensued concerning Everglades
Drainage District and because of the similarities between it and Central and Southern
Florida Flood Control District, the Attorney General and the Courts have referred to
opinions in Everglades Drainage District cases, when dealing with the Flood Control
The Flood Control District was created by a special act of the legislature in 1949
(Chapter 25270, laws of Florida, 1949) to operate under general legislation passed
at that same session (Chapter 378 Florida Statutes). The special act contained the
ad valorem taxing authority, and that remains the authority to levy the tax. The special
act denominated the Flood Control District...."a public corporation carrying out and
effectuating the provisions of said Chapter. Its corporate life- shall be for ninety-
nine (99) years."
The Constitution of Florida of 1885 was amended in 1940 (Article IX, Sec. 2) to read
as follows: "After December 31st A.D. 1940, no levy of ad valorem taxes upon real or
personal property except intangible property, shall be made for any State purpose whatso-
The 1968 Constitution contains the following language (Article VII, Sec. 1) ...."No
state ad valorem taxes shall be levied upon real estate or tangible personal property."
In 1962 a case was filed in the Circuit Court in Martin County in which the ad valoremu
taxing authority of the District was challenged. The Circuit Judge ruled upon the con-
stitutionality of the taxing authority and the case was appealed to the Supreme Court;
it is reported as Bair v Central and Southern Florida Flood Control District 1962 144
So. 2nd, 818.
In the above case one of the contentions was that the tax was being levied for a "state
purpose" and was thus unconstitutional.
The Supreme Court said the tax was not for a state purpose. 144 So. 2nd, 820 (2) "Ap-
pellants next allege infraction of the 1940 amendment to Article IX, Sec. 2, Florida
Constitution, which proscribes ad valorem taxes upon real property for state purposes.
This question may be decided upon the same reasoning which sustains the creation of
the district in the first instance, i.e. a determination that the constituent area is
differentiated from that excluded, or from the state at large, with. respect to bene-
fits resulting from operations under the act. In distinguishing district from state
purposes this controlling question of benefit is one of degree, incidental effects be-
yond the confines of the district being often inevitable and by no means fatal. On
this point we therefore conclude that the purposes for which the levy in this case is
authorized are by nature district or local as opposed to state and refrain from further
debate upon the affirmative definition of state purposes in this area of potential
THIS IS 100 PERCENT RECYCLED PAPER
--- ~~~ *- --~-I
.The Supreme Court, in its opinion, cited a number of cases which involved the predeces-
sor body, Everglades Drainage District. Martin v Dade Muck Land Co. 1929 116 So. 449
was cited and in that case the Everglades Drainage District was denominated "an agency
of the State for special governmental purposes."
In Forbes Pioneer Boat Line v Board of Com'rs of Everglades Drainage Dist. 1919 82 So.
346, the Court was also faced with categorizing Everglades Drainage District it stated
"the board of commissioners of Everglades drainage district is in no sense a private
corporation, but that it is a public quasi corporation, and as such, a governmental
agency of the state for certain definite purposes...." (82 So. page 350).
While the delineation of the Flood Control District as "an agency of the state for
special governmental purposes" as opposed to a state agency, may seem more a play on
words than a substantive matter, the distinction has been recognized by the Attorney
General of Florida on a number of occasions, the most recent of which was opinion
072-210. I quote the summary of the opinion as contained on Page 4 thereof--"The
Central and Southern Florida Flood Control District is not a state agency or a politi-
cal subdivision of the state within the meaning and purview of Section 287.26, Florida
Statutes 1971, insofar as the acquisition and maintenance of communication equipment
and systems are furnished by the District's tax revenues (local) as opposed to the use
of state funds granted to the District or appropriated therefore by the state. There-
fore, the District and its communication facilities are not subject to the jurisdiction
of the Division of Communications, Department of General Services. Under the terms of
its enabling acts, Chapters 25214 and 25270, Laws of Florida 1949, said District is
expressly designated a public corporation."
A type one transfer as required by HB 1718 is defined in Chapter 20 Florida Statutes
as follows 20.06"(1) TYPE ONE TRANSFER.- A type one transfer is the transferring intact
of an existing agency or of an existing agency with certain identifiable programs,
activities, or functions transferred or abolished so that the agency becomes a unit
of a department. Any agency transferred to a department by a type one transfer shall
henceforth exercise its powers, duties, and functions as prescribed by law, subject to
review and approval by, and under the direct supervision of, the head of the depart-
This is not the most precise, exact presentation, that can be made of the problem, how-
ever time limitations prevent a better product. The Flood Control District by defini-
tion is an agency of the state for special governmental purposes. To effectuate those
purposes it levies an ad valorem tax. If it becomes a full fledged agency of the state
as contemplated by HB 1718, it will lose its former identification. As a state agency,
it will be levying an ad valorem tax for a state purpose. The involvement of the
writer in the Bair case supra, leads to the opinion that the District will be exposed
to the challenge and that its defense conducted as a state agency, will be weakened
to the extent the Supreme Court can much more readily find the ad valorem taxing author-
ity unconstitutional; to state unequivocally the taxing authority would be struck down
is beyond the realm of anyone except the Court.
The bill also involves the taxing authority of Southwest Florida Water Management Dis-
trict and authority has been given to advise that Counsel for that District view HB
1718 with the same concern for the taxing authority as does this writer.
There are a number of practical problems which would occur for the two existing districts
(and the 3 additional districts authorized by the Water Resources Act of 1972 (Chapter
72-299), if HB 1718 was passed.
THIS IS 100 PERCENT RECYCLED PAPER
It was my understanding this memorandum was to be directed to the ad valorem taxing
authority problem and the other matters can be discussed at your convenience.
Thank you for this opportunity to present a matter of grave concern to the two exist-
ing water control districts.
ROBERT GRAFTON, District Counsel
Central and Southern'Florida Flood
May 4, 1973/lsr
THIS IS 100 PERCENT RECYCLED PAPER