Opinion
No. 38319.
April 8, 1970.
Appeal from the Circuit Court, Dade County, Hal P. Dekle, J.
Herbert Buchwald and Elliott Harris, Miami Beach, for appellants.
Thomas C. Britton, County Atty., Stuart Simon, Asst. County Atty., and Albert L. Weintraub, Miami, for appellees.
This interlocutory appeal is taken from the following self-explanatory Order issued in this cause by Circuit Court, Dade County:
"ORDER OF DISMISSAL
"THIS CAUSE came on to be heard upon Defendant's and intervenor's joint motion to dismiss Plaintiff's amended complaint.
"Plaintiffs challenged the 1967 assessment by the Metropolitan Dade County Tax Assessor of lands lying with the City of Opa-locka, Dade County, Florida. In Counts I and II, plaintiffs alleged and defendants admitted that the County Tax Assessor prepared the 1967 assessment roll and applied the county tax levy based on the agricultural use of the land in accordance with Florida Statute 193.11(3); however, the same County Tax Assessor assessed the lands without regard to agricultural use for city tax purposes in accordance with the decision of the Supreme Court in the case of Adler Built Industries, Inc., vs. The City of Opa-locka, 196 So.2d 914 (Fla. 1967). Thereafter, Metropolitan Dade County Tax Assessor prepared two tax notices for plaintiff's land, one based upon the agricultural use assessment for county tax purposes and the other for city tax purposes without considering the agricultural use. Plaintiffs contended that these practices of the tax assessor of preparing and delivering two separate tax notices and in applying the municipal levy against a valuation different from that used for county purposes are illegal and invalid and without authority under the Charter of Metropolitan Dade County and the Constitution and laws of the State of Florida, notwithstanding the Charter of the City of Opa-locka.
"Plaintiffs further allege and defendants admit that the defendant's actions are based upon their interpretation of Section 69 of the Charter of the City of Opa-locka and Florida Statute 193.61 and the Adler Built case, (supra). This led plaintiffs to complain that the charter provision and Florida Statute 193.61 is contrary to Art. IX, Sec. 5 of the Florida Constitution in that it creates more than one principle of taxation with regard to the assessment of real properties devoted to bona fide agricultural uses lying within the jurisdiction limits of the City of Opa-locka, Florida. Defendants have moved to dismiss the amended complaint as to Counts I and II.
"Argument of counsel having been heard and plaintiffs having refused to further amend their complaint, it is accordingly,
"ORDERED AND ADJUDGED that defendants' and intervenor's joint motion to dismiss Count I and II be, and the same is hereby granted in accordance with the motions to dismiss and the said counts are dismissed with prejudice. The Court further finds:
"(a) That all parties have admitted that the same lands involved in the Adler Built, case (supra) are involved in the above styled cause.
"(b) The practice of the Dade County Tax Assessor in placing two assessments upon plaintiffs' property is legal and not in violation of the Charter of Metropolitan Dade County.
"(c) The Legislature of the State of Florida has given the City of Opa-locka a substantive right in Section 69 of the Charter of the City of Opa-locka, C. 29347, Special Acts of Florida, 1953, which empowers the city commission to adopt a reasonable classification of property for taxation purposes and to prescribe that 'property of a peculiar nature or designated or used for a special purpose, may be assessed * * * either: (1) at its fair market value * * *' without regard to Fla. Stat. 193.11(3).
"(d) Section 69 of the Charter of the City of Opa-locka is constitutional as it is not in conflict with Fla. Constitution Article IX, Section 5.
"(e) Fla. Stat. 193.61 is constitutional as it does not violate Article IX, Sec. 5, of the Florida Constitution; Fla. Stat. 193.61 does not create more than one principle of taxation covering the assessment of real properties devoted to bona fide agricultural uses lying within the jurisdictional limits of the City of Opa-locka, Florida.
"IT IS FURTHER ORDERED AND ADJUDGED that proceedings on Counts III and IV of plaintiff's amended complaint be, and the same are, hereby abated pending resolution at the appellate level of Counts I and II pursuant to stipulation of the parties.
"DONE AND ORDERED in Chambers at Miami, Dade County, Florida, this 23 day of January, 1968."
The paramount issue in this appeal is whether or not § 69 of the Opa-locka Charter has survived the transfer of all tax assessment and collections powers from Opa-locka to the Metropolitan government as required by § 4.04 of the Home Rule Charter. The Opa-locka Charter in its entirety appears in Ch. 29347, Laws of Fla. (1953). Hereafter, we will abbreviate the Opa-locka Charter citation as "O.L.C." and the Dade Home Rule Charter citation as "H.R.C."
Two Opa-locka Charter provisions are pertinent here.
Section 69 O.L.C., entitled "Assessment Role", includes the following:
"The commission may adopt reasonable classifications of property for taxation purposes, and prescribe that property of power lines, light lines, gas lines, water systems and other utilities and property of a peculiar nature or designed or used for a special purpose, may be assessed for taxation either:
(1) at its fair market value, or
(2) at its fair value for the peculiar use for which the same shall be designed or used, or
(3) upon such basis or bases and in such manner as is or may be provided by general law with respect to such kinds of property; provided in any event that the rates and bases of assessment shall be equal and uniform for each class of property, and that the rate of taxation and millage shall be the same throughout the city."
Section 72 O.L.C., entitled "Taxes — State Laws to Apply", is as follows:
"The general laws of the State of Florida upon the subject of taxation shall apply to and govern in the assessment, levy and collection of taxes in the City of Opa-locka and in the return and sale of property delinquent therefor; and shall also apply and govern in respect to the powers, duties and liabilities of persons and property touching and concerning such taxes, and shall have full force and effect in said city as far as same may be applicable, except as herein otherwise provided." (Emphasis supplied.)
In the Adler Built case cited as controlling by the Circuit Court in its Order of Dismissal, this Court approved a District Court holding that the "except as herein otherwise provided" language contained in § 72 O.L.C. referred to the assessment alternatives listed in § 69 O.L.C., and that, therefore, agricultural land within Opa-locka's city limits did not have to be assessed as agricultural in spite of Fla. Stat. § 193.11(3), F.S.A., the agricultural land assessment statute. Since much of the property involved in the instant case was previously involved in similar litigation in Adler Built, the Circuit Judge felt that that case controlled here.
However, the instant case differs from Adler Built in one very important aspect. While § 4.04 H.R.C., entitled "Assessment and Collection of Taxes", was generally in effect in Dade County when the 1965 dual assessment was challenged in Adler Built, it did not then apply to Opa-locka. § 9.03 (D) H.R.C. permitted municipalities to forestall the § 4.04 H.R.C. transfer of taxing powers until 1966 at the latest by petition alleging hardship. Opa-locka availed itself of this delaying provision until its expiration. Thus the application of § 4.04 H.R.C. was neither raised nor considered when this Court approved the City's 1965 assessment.
In pertinent part, § 4.04 H.R.C. provides:
"(A) Beginning with the tax year 1961, the county tax rolls prepared by the county shall be the only legal tax rolls in this county for the assessment and collection of county and municipal taxes. Thereafter no municipality shall have an assessor or prepare an ad valorem tax roll. Each municipality shall continue to have the right to adopt its own budget, fix its own millage, and levy its own taxes."
In the instant case, § 4.04 H.R.C. was in effect and the 1967 assessment complained of here was strictly a Metropolitan government activity. Appellant's complaint is with how that activity has been carried out. The Metro assessor in 1967 assessed appellant's property as agricultural under Fla. Stat. 193.11(3), F.S.A., for county tax purposes, but then assessed the same lands as nonagricultural in accordance with the assessment standard last utilized by the City of Opa-locka when § 69 O.L.C. permitted assessment by the City.
Appellant submits that since § 4.04 H.R.C. eliminates Opa-locka's power to assess and collect ad valorem taxes, it logically follows that the specialized assessment provisions available to the City solely by virtue of § 69 O.L.C. have been nullified. Appellant further submits that since nothing in its Home Rule Charter exempts the County from having to apply general State law regarding assessments, including Fla. Stat. § 193.11(3), F.S.A., assessment by the County of appellant's land under a double standard is illegal.
In rebuttal, the City contends that § 69 O.L.C. provided the City with a substantive right of choice regarding assessment standards which was not nullified by "a mere relocation of tax offices under § 4.04 H.R.C."
We think that appellant's position is the correct one. Fla. Stat. § 193.11(3), F.S.A., requires that "All lands being used for agricultural purposes shall be assessed as agricultural lands * * *." However, Fla. Stat. § 193.61, F.S.A., provides that nothing in Fla. Stat. Ch. 193 should be construed as in any way limiting or abridging powers to assess or collect taxes which may have been granted to a municipality by either special or charter act. Since §§ 69 and 72 O.L.C. provided alternatives to assessment under Fla. Stat. § 193.11(3), F.S.A., we approved in Adler Built the assessment by the City of certain lands within its boundaries at fair market value rather than at agricultural value.
But the assessment complained of in the instant case was not made by the municipality under §§ 69 and 72 O.L.C. The assessments were made by the County pursuant to the investiture of all assessment powers in the County under § 4.04 H.R.C. This investiture was absolute: "Thereafter no municipality shall have an assessor or prepare an ad valorem tax role." § 4.04 H.R.C. reserved to each municipality only "[T]he right to adopt its own budget, fix its own millage, and levy its own taxes." Municipal assessment and collection rights and responsibilities were abolished, subject only to the delaying provision contained in § 9.03(D) H.R.C. When the delaying provision expired in 1966, the operation of § 4.04 removed Opa-locka from under the protective umbrella of Fla. Stat. § 193.61, F.S.A., and thus the logic applied in Adler Built no longer controls.
County assessment and collection activities must comply with general State law unless some specific exemption therefrom applies. Dade County is included under this general rule. Art. VIII, § 11(9) (Fla. Const. 1885) states: "[G]eneral laws * * * shall be the supreme law in Dade County, Florida, except as expressly provided herein and this section shall be strictly construed to maintain such supremacy of this Constitution * * * in the enactment of general laws pursuant to this Constitution." Art. VIII, § 11(1) (d) authorized any proposed Home Rule Charter to set out, "[A] method by which any and all of the functions or powers of any municipal corporation or other governmental unit * * * may be transferred to the Board of County Commissioners of Dade County." Art. VIII § 11(1) (b) established that any proposed charter could "[G]rant full power and authority to the Board of County Commissioners of Dade County * * * to levy and collect such taxes as may be authorized by general law and no other taxes."
Pursuant to the authority contained in the above cited constitutional grants and limitations, the Home Rule Charter included § 4.04's absolute and unfettered delegation of all assessment and tax collection powers to the County government. When this delegation was approved by the electorate of the County, it thereby superseded the assessment and taxing provisions granted to the various Dade municipalities by the Legislature under Art. IX § 5 (Fla. Const. 1885). Since this supersedure did not provide for preservation of municipal charter variations which were exceptions to general law, we must hold that such variations were nullified along with all other municipal charter provisions relating directly to municipal assessment and tax collection.
Furthermore, we think that conflict would arise between the position urged by appellees and the duty of the County to conduct assessments in accordance with general law, including Fla. Stat. § 193.11(3), F.S.A., in the absence of stated exceptions. Section 8.04 H.R.C. resolves this conflict: "This charter and ordinances adopted hereunder shall in cases of conflict supersede all municipal charters and ordinances, except as herein provided, and where authorized by the Constitution, shall in cases of conflict supersede all special and general laws of the State."
In addition, we are persuaded by appellants' argument that § 4.04 H.R.C. was drafted to accomplish a two-fold purpose which would be defeated if appellees should prevail here. First, § 4.04 was intended to be an economy measure which would eliminate duplication of assessment efforts expended on the same property by two separate units of government. Second, it was intended as a measure to eliminate the evil of differing assessments on that same property. Appellants' complaint filed in Circuit Court indicates that the total valuation on the County tax notice was $34,110 whereas the valuation of the same property on the municipal tax notice was $654,530. The variation between the two assessments amounts to $620,420.
The first regular session of the 1969 Legislature enacted Ch. 69-54, which provided that the several county assessors shall assess all property for all municipalities located within their respective counties at just value beginning no later than 1970. The Act further provides that all municipal charter provisions to the contrary are abolished. While this enactment is not applicable to the instant case since the assessments complained of occurred in 1967, we refer to it as an example of what we consider to have been the intent behind § 4.04 H.R.C.
For the foregoing reasons, which were not operative at the time when Adler Built was decided, we hereby reverse the Circuit Judge's Order of Dismissal as to Counts I and II of appellants' amended complaint. We are satisfied, however, that § 69 O.L.C. is constitutional (although superseded) and that Fla. Stat. § 193.61, F.S.A., is also constitutional (although not applicable here).
This case is reversed in part, affirmed in part, and remanded to the Circuit Court for further disposition not inconsistent with this opinion.
It is so ordered.
ROBERTS and THORNAL, JJ., and CREWS, Circuit Judge, concur.
ERVIN, C.J., dissents with opinion.
I am unable to agree to the majority opinion. It appears to lay too much emphasis upon the mere fact that the administrative function of assessing Appellants' city property has been transferred from the City Tax Assessor of Opa-Locka to the Dade County Tax Assessor as the predicate for deciding the basic issue concerning whether Appellants' city property must be assessed exclusively as agricultural lands.
The pertinent part of Section 4.04 of the Dade County Home Rule Charter relied on by the majority to support the position that our holding in Adler-Built Industries, Inc. v. City of Opa-Locka, 196 So.2d 914, is no longer applicable, reads as follows:
"(A) Beginning with the tax year 1961, the county tax rolls prepared by the county shall be the only legal tax rolls in this county for the assessment and collection of county and municipal taxes. Thereafter no municipality shall have an assessor or prepare an ad valorem tax roll. Each municipality shall continue to have the right to adopt its own budget, fix its own millage, and levy its own taxes."
A cursory reading of the language clearly indicates it has no modifying effect on Sections 69 and 72 of the Opa-Locka City Charter except to transfer the assessment duty of assessing property for city taxes to the Dade County Tax Assessor.
Departmentally, the Dade County Tax Assessor has recognized that his assessment of lands for municipal taxes in the City of Opa-Locka is to be made in accordance with the standards prescribed in Section 69 of the Charter of the City of Opa-Locka, and he has not mandatorily applied the agricultural land assessment method of Section 193.11(3), F.S., F.S.A., exclusively in assessing Appellants' lands.
It has long been recognized judicially that legislative transfers of administrative functions (e.g., transfers of road building functions from county commissions to the State Road Department, and transfers of bond trustee duties of county commissions and special boards to the State Board of Administration; see State ex rel. Buford v. Fearnside, 87 Fla. 349, 100 So. 256, at 258; Amas (Carlton) v. Mathews, 99 Fla. 1, 126 So. 308, text 330; and State v. State Board of Administration, 157 Fla. 360, 25 So.2d 880, text 883) in nowise change basic laws prescribing standards and methods relating to the subjects involved.
The majority opinion reads in part:
"Appellant submits that since § 4.04 H.R.C. eliminates Opa-locka's power to assess and collect ad valorem taxes, it logically follows that the specialized assessment provisions available to the City solely by virtue of § 69 O.L.C. have been nullified. Appellant further submits that since nothing in its Home Rule Charter exempts the County from having to apply general State law regarding assessments, including Fla. Stat. § 193.11(3), assessment by the County of appellant's land under a double standard is illegal. * * We think that appellant's position is the correct one. * * *"
I fail to follow the contention made by the majority that Home Rule Charter Section 4.04 changed the basic underlying charter provisions of the City relating to assessment of lands, i.e., Section 69.
Section 4.04 of the Dade County Home Rule Charter merely transfers the assessment function to the Dade County Tax Assessor, with the assessment of the City's taxes to be included in the County roll, but changes in no way the City Charter provisions relating to methods of assessment which were recognized and confirmed by us in the Adler-Built Industries case.
Unless and until the Home Rule Charter is amended to supersede the basic provisions of Section 69 of the City of Opa-Locka Charter relating to the classification of property within the City for taxation purposes, the majority position has no statutory predicate. The mere "changing of the guard" from the City Tax Assessor to the County Tax Assessor to perform the administrative function of making the assessment did not have the secondary effect of modifying Section 69 or lift the recognition thereof by Section 193.61(2), F.S., F.S.A.
There is no double standard involved. In Adler-Built Industries, Inc. v. City of Opa-Locka, supra, we quoted with approval not only the portion of Section 193.61(2) referring to tax assessment standards of cities which have been or may be granted by special act or charter act (which local standards have not been withdrawn or repealed), but also the concluding portion to the effect that nothing in Chapter 193 limits a municipal corporation in the method of assessing city taxes to any of the methods established by Chapter 193 (text 915).
Apparently the majority is holding that all cities in the state except those in Dade County, or perhaps except only the City of Opa-Locka, will be subject to the holding in the Adler-Built Industries case. It has been held over and over again by this Court that the Dade County Home Rule Charter and ordinances of the Dade County Commission do not supersede general laws of the state, including, of course, those relating to the assessment of city taxes. Certainly Section 4.04 of the Dade County Home Rule Charter does not operate to modify Section 193.61(2). The holding in Adler-Built Industries, Inc., supra, is still the law.
We said with approval in the Adler-Built Industries case, supra:
"The District Court of Appeal concluded that the city was free to assess property at its fair market value or at a fair value for a particular use, in this case agricultural. * * *"
The 1885 Constitution and the 1968 Constitution do not mandatorily require either the Legislature to provide for the assessment of, or the county tax assessors to assess, lands used for agricultural purposes lying within cities exclusively as agricultural lands. See Sections 1 and 5 of Art. IX, 1885 Const., and Sec. 4(a) of Art. VII, 1968 Rev.Const.
The Legislature has the power under the Constitution to classify lands used for agricultural purposes lying within and without cities differently in respect to their tax assessment. Compare W.J. Howey Co. v. Williams, 142 Fla. 415, 195 So. 181 (1940). Lands within cities are urban in character and potential and their present use for agricultural purposes would not appear to mandatorily require that they be treated for assessment purposes equally and identically as lands used for agricultural purposes in unincorporated areas. As urban properties because of their municipal location, they usually have use potentials quite different from rural farm lands. The general laws on the subject, read together (§§ 193.11(3) and 193.61(2), F.S., F.S.A.), recognize these differences, presumably because it is commonly understood that urban lands within cities ordinarily are not agricultural in their essential nature or potential, although they may be presently so devoted — usually so in order to gain a temporary tax advantage not enjoyed by most of the other lands within the city.
As was said long ago by a very cogent philosopher, "There is no greater injustice than treating unequal causes equally." It is certainly unjust to discriminate between city property owners in the assessment of urban lands on the basis some are used for agricultural purposes while others are not, similarly as if such lands were unincorporated rural lands.
I would adhere to the underlying rationale in the Adler-Built Industries case that the Legislature is empowered under the Constitution to classify urban and rural lands used for agricultural purposes differently for tax assessment purposes and has done so in the cited provisions of Chapter 193; and that this is still so although the City Tax Assessor of Opa-Locka no longer makes the assessment.
To adopt the position of the majority that the existence of said Section 4.04 has any effect beyond a mere transfer of the assessment function from one officer to another does violence to the general laws of the state and creates confusion and doubts as to the criteria for assessing lands within all the cities of the state.