ACADEMY FOR POSITIVE LEARNING, INC. v. SCHOOL BOARD OF PALM BEACH COUNTY, FLORIDA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

ACADEMY FOR POSITIVE LEARNING, INC., a Florida not-for-profit

corporation, PALM BEACH MARITIME MUSEUM, INC., a Florida not-

for-profit corporation, d/b/a PALM BEACH MARITIME ACADEMY,

MARLENY OLIVO, an individual, and PEDRO OLIVO, an individual,

Appellants,

v.

SCHOOL BOARD OF PALM BEACH COUNTY, FLORIDA and G-STAR

SCHOOL OF THE ARTS, INC., a Florida not-for-profit corporation,

Appellees.

No. 4D19-2816

[April 22, 2020]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm

Beach County; Glenn D. Kelley, Judge; L.T. Case No. 50-2019-CA-000405-

XXXX-MB.

Shawn A. Arnold and Braxton A. Padgett of The Arnold Law Firm, LLC,

Jacksonville, for appellants.

Jon L. Mills of Boies Schiller Flexner LLP, Miami, Stuart H. Singer and

Sabria A. McElroy of Boies Schiller Flexner LLP, Fort Lauderdale, for

appellee, School Board of Palm Beach County, Florida.

GROSS, J.

Is a charter school entitled to a share of ad valorem taxes collected

pursuant to a 2018 referendum approved by the voters of Palm Beach

County? We hold that the charter school is not so entitled and affirm the

final judgment entered by the circuit court.

Background

Appellants Academy for Positive Learning and Palm Beach Maritime

Academy (the “Charter Schools”) are charter schools located in Palm Beach

County. Appellants Marleny and Pedro Olivo are parents of a public

charter school student who attends Academy for Positive Learning.

The 2018 Referendum

During the November 2018 election, the School Board of Palm Beach

County, Florida placed a referendum on the ballot asking county voters to

approve an ad valorem levy for the operational needs of non-charter

District schools to fund school safety equipment, fund program teachers,

and improve teacher pay. This is how the referendum appeared on the

ballot:

REFERENDUM TO APPROVE AD VALOREM LEVY FOR

SCHOOL SAFETY, TEACHERS AND OPERATIONAL

NEEDS

Shall the School Board of Palm Beach County have authority

to levy 1.00 mills of ad valorem millage dedicated for

operational needs of non-charter District schools to fund

school safety equipment, hire additional school police and

mental health professionals, fund arts, music, physical

education, career and choice program teachers, and improve

teacher pay beginning July 1, 2019 and automatically ending

June 30, 2023, with oversight by the independent committee

of citizens and experts?

______Yes

______No

The referendum expressly excluded public charter schools from receiving

any revenues generated from the ad valorem tax. County voters approved

the referendum, which went into effect on July 1, 2019.

The 2018 Referendum was authorized by section 1011.71(9), Florida

Statutes (2018), which states:

In addition to the maximum millage levied under this section

and the General Appropriations Act, a school district may levy,

by local referendum or in a general election, additional

millage for school operational purposes up to an amount

that, when combined with nonvoted millage levied under this

section, does not exceed the 10-mill limit established in s.

9(b), Art. VII of the State Constitution. Any such levy shall be

for a maximum of 4 years and shall be counted as part of the

10-mill limit established in s. 9(b), Art. VII of the State

Constitution. Millage elections conducted under the authority

granted pursuant to this section are subject to s. 1011.73.

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Funds generated by such additional millage do not

become a part of the calculation of the Florida Education

Finance Program total potential funds in 2001-2002 or

any subsequent year and must not be incorporated in the

calculation of any hold-harmless or other component of

the Florida Education Finance Program formula in any

year. If an increase in required local effort, when added to

existing millage levied under the 10-mill limit, would result in

a combined millage in excess of the 10-mill limit, any millage

levied pursuant to this subsection shall be considered to be

required local effort to the extent that the district millage

would otherwise exceed the 10-mill limit.

§ 1011.71(9), Fla. Stat. (2018) (emphasis added).

No language in section 1011.71(9), as it existed in 2018, requires that

funds generated by the referendum be distributed to charter schools. The

only requirement for the use of “additional millage” collected as a result of

the referendum is that it be used “for school operational purposes,” which

vests much discretion in a School Board to allocate the funds.

The 2018 Referendum at issue stated that the millage levy would be

“dedicated for operational needs of non-charter District schools to fund

school safety equipment, hire additional school police and mental health

professionals, fund arts, music, physical education, career and choice

program teachers, and improve teacher pay.” This language falls under

the statutory requirement to use these funds “for school operational

purposes.” Id.

In this litigation, appellants have creatively attempted to rewrite both

the 2018 Referendum and section 1011.71(9). For the reasons set forth

below, we reject those attempts and, instead, abide by the plain language

of the referendum and statute.

The Underlying Litigation

On January 10, 2019, appellants filed a complaint for declaratory and

injunctive relief, requesting that the trial court (1) enter a declaratory

judgment requiring the School Board to share the 2018 Referendum

revenues with the Charter Schools on a pro rata basis; and (2) enjoin the

School Board from denying the Charter Schools their proportionate share

of the 2018 Referendum revenues. Appellants asserted that the 2018

Referendum violated Florida law by excluding charter schools because

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Florida’s statutory scheme mandates equal treatment of charter and non-

charter schools.

Appellants and the School Board filed cross-motions for summary

judgment. The parties agreed that there were no disputed factual issues

and that the case involved a matter of statutory construction and

constitutional interpretation. Following a hearing, the circuit court issued

a thoughtful and detailed order granting the School Board’s motion for

summary judgment and denying appellants’ motion. The court agreed

with the School Board that the 2018 Referendum did not violate Florida

law based on the plain language of the statutory scheme. The court later

entered a final judgment in favor of the School Board, prompting this

appeal.

Discussion 1

Appellants argue that the Charter Schools are entitled to a

proportionate share of the revenues generated by the 2018 Referendum

because: (A) section 1002.33(17), Florida Statutes (2018), requires that

public charter school students be funded the same as other public school

students; (B) the millage levy authorized under section 1011.71(9) is part

of the “current operating discretionary millage” that must be shared with

the charter schools; and (C) the passage of House Bill 7123 supports the

conclusion that the School Board is required to share the 2018

Referendum revenues. 2 We consider each of these arguments in turn.

The first sentence of the charter school funding provision in section

1002.33(17) describes the calculation method for funding students,

not the source or amount of such funding

Appellants first argue that the Charter Schools are entitled to a

proportionate share of the revenues generated from the 2018 Referendum

because section 1002.33(17), Florida Statutes, requires that public charter

school students be funded the same as other public school students.

Section 1002.33(17) provides, in pertinent part:

(17) Funding.--Students enrolled in a charter school,

regardless of the sponsorship, shall be funded as if they are

1 “The standard of review for an order granting summary judgment is de novo.”

State Farm Fla. Ins. Co. v. Lime Bay Condo., Inc., 187 So. 3d 932, 934 (Fla. 4th

DCA 2016).

2 Appellants also rely on a circuit court order from a different circuit that is not

binding on this court.

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in a basic program or a special program, the same as students

enrolled in other public schools in the school district.

§ 1002.33(17), Fla. Stat. (2018).

Appellants’ treatment of the statute omits crucial words; they appear

to read the statute like this: “Students enrolled in a charter school,

regardless of the sponsorship, shall be funded . . . the same as students

enrolled in other public schools in the school district,” while ignoring the

language in the middle of the sentence. As the School Board asserts, when

applying basic principles of statutory construction, the modifier in the first

sentence, “the same as,” must be read to modify the entire nearest

antecedent phrase, “shall be funded as if they are in a basic program or a

special program.” This rule of statutory construction “calls for a

commonsense interpretation of the way in which words are put together

to form phrases, clauses, or sentences.” Scherer v. Volusia Cty. Dep’t of

Corr., 171 So. 3d 135, 138 (Fla. 1st DCA 2015). The phrase “as if they are

in a basic program or a special program” describes a component of the

formula for determining each charter school’s allocation of funds. See §

1011.62(1), Fla. Stat. (2018).

In addition to selectively reading the statute, appellants isolate it from

its context—the statutory framework for funding schools. As pointed out

by the School Board, the Florida Education Finance Program (“FEFP”)

allocates funds to school districts based on student enrollment and uses

a unit of measurement for each student called a full-time equivalent

(“FTE”). § 1011.62(1)(a), Fla. Stat. (2018). Surveys are taken each year to

determine the number of students in one of several programs, which

include “basic” educational programs and specified “special” programs. Id.

Each program has an associated cost factor intended to reflect the relative

cost of serving students in each program, which adds weight to the FTE.

§ 1011.62(1)(c), Fla. Stat. (2018). The weight increases the amount of

funds a district is eligible to receive since the FTE is multiplied by the

program cost factor to reach a weighted FTE. § 1011.62(1)(d), Fla. Stat.

(2018).

With this context in mind, we conclude that the first sentence of section

1002.33(17) plainly requires charter school funding to take into account

whether charter school students are enrolled in a “basic” or “special”

education program, “the same as” is done with non-charter public school

funding. Therefore, the trial court correctly reasoned that this section of

the statute refers to the method of calculating funding, not the funding

source or amount.

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Appellants look to a 2004 Attorney General Opinion (“AGO”) to support

their interpretation of the statute. That opinion addressed the question of

“whether the language of section 1002.33, Florida Statutes, requires that

charter schools be funded ‘the same as’ other schools in the public school

system.” Op. Att’y Gen. Fla. 2004-67 (2005). The AGO answered the

question in the affirmative, opining that “[t]he language of the statute

appears to be plain and definite and the intention of the Legislature is

conveyed clearly and must be followed.” Id.

However, as the School Board argues, the AGO did not opine that

charter schools are entitled to a share of funding from all of the same

sources as district-operated schools and, instead, merely repeated the

language of the charter school funding provision without analysis.

For these reasons, we conclude that the language of the charter school

funding provision in section 1002.33(17) simply makes the method of

calculating funding for charter schools and non-charter schools the same;

it does not mean that the funding amount or sources of funding are the

same. The circuit court did not err in determining that the Charter Schools

were not entitled to receive a portion of the proceeds from the 2018

Referendum on this basis.

The millage levy authorized under section 1011.71(9) is not part of

the “current operating discretionary millage” that must be shared

with the Charter Schools

Section 1002.33(17)(b), Florida Statutes, sets forth the sources of

funding for charter schools:

(b) The basis for the agreement for funding students enrolled

in a charter school shall be the sum of the school district’s

operating funds from the Florida Education Finance

program as provided in s. 1011.62 and the General

Appropriations Act, including gross state and local funds,

discretionary lottery funds, and funds from the school

district’s current operating discretionary millage levy;

divided by total funded weighted full-time equivalent students

in the school district; multiplied by the weighted full-time

equivalent students for the charter school[.]

§ 1002.33(17)(b), Fla. Stat. (2018) (emphasis added). Appellants contend

that the 2018 Referendum revenues are part of the “current operating

discretionary millage levy,” and therefore must be shared with the charter

schools.

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This argument fails for two reasons: (1) the phrase “current operating

discretionary millage levy” in section 1002.33(17)(b) refers solely to the

nonvoted discretionary millage levy authorized by section 1011.71(1); and

(2) the phrase “current operating discretionary millage levy” in section

1002.33(17)(b) refers to a source of funds which are a component of the

FEFP funds, and does not include the separate additional millage levy

authorized under section 1011.71(9), which is expressly excluded from the

FEFP funds. Each of these points is addressed in turn.

1. The phrase “Current Operating Discretionary Millage Levy”

in section 1002.33(17)(b) refers to the nonvoted discretionary

millage levy contemplated under section 1011.71(1)

The Legislature’s use of the phrase “current operating discretionary

millage” in section 1002.33(17)(b) refers to the single nonvoted

discretionary millage levy contemplated under section 1011.71(1), which

states:

1011.71 District School Tax

(1) If the district school tax is not provided in the General

Appropriations Act or the substantive bill implementing the

General Appropriations Act, each district school board

desiring to participate in the state allocation of funds for

current operation as prescribed by s. 1011.62(18) shall levy

on the taxable value for school purposes of the district,

exclusive of millage voted under s. 9(b) or s. 12, Art. VII of the

State Constitution, a millage rate not to exceed the amount

certified by the commissioner as the minimum millage rate

necessary to provide the district required local effort for the

current year, pursuant to s. 1011.62(4)(a) 1. In addition to

the required local effort millage levy, each district school

board may levy a nonvoted current operating

discretionary millage. The Legislature shall prescribe

annually in the appropriations act the maximum amount of

millage a district may levy.

§ 1011.71(1), Fla. Stat. (2018) (emphasis added).

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This nonvoted discretionary millage levy is separate from the voted-

upon millage levy authorized under section 1011.71(9), 3 pursuant to

which the 2018 Referendum at issue was passed.

Again, as it existed in 2018, section 1011.71(9) provided:

(9) In addition to the maximum millage levied under this

section and the General Appropriations Act, a school district

may levy, by local referendum or in a general election,

additional millage for school operational purposes up to

an amount that, when combined with nonvoted millage

levied under this section, does not exceed the 10-mill

limit established in s. 9(b), Art. VII of the State

Constitution. Any such levy shall be for a maximum of 4

years and shall be counted as part of the 10-mill limit

established in s. 9(b), Art. VII of the State Constitution.

Millage elections conducted under the authority granted

pursuant to this section are subject to s. 1011.73. Funds

generated by such additional millage do not become a part

of the calculation of the Florida Education Finance

Program total potential funds in 2001-2002 or any

subsequent year and must not be incorporated in the

calculation of any hold-harmless or other component of

the Florida Education Finance Program formula in any

year. If an increase in required local effort, when added to

existing millage levied under the 10-mill limit, would result in

a combined millage in excess of the 10-mill limit, any millage

levied pursuant to this subsection shall be considered to be

required local effort to the extent that the district millage

would otherwise exceed the 10-mill limit.

§ 1011.71(9), Fla. Stat. (2018) (emphasis added). Unlike the nonvoted-

upon discretionary millage in subsection (1), the voted-upon millage in

subsection (9) is not referred to as a “current operating discretionary

millage,” but is instead referred to as an “additional millage for school

operational purposes.” Id. Further, as the trial court noted below, a

millage levy under subsection (9) is not discretionary, as it requires voter

approval, and therefore the use of the phrase “current operating

discretionary millage” in section 1002.33(17)(b) cannot be reasonably

3 Section 200.001(3), Florida Statutes, which sets forth different categories of

school millage rates, recognizes “nonvoted discretionary school operating millage”

and “voted district school operating millage” as separate and distinct categories.

§ 200.001(3)(b),(c), Fla. Stat. (2018).

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interpreted to refer to the additional voted-upon millage in section

1011.71(9).

This conclusion is supported by the fact that the language of section

1002.33(17)(b) predates the additional voted-upon millage in section

1011.71(9). 4 Therefore, at the time the funding provision of the charter

school statute was adopted, its reference to the “current operating

discretionary millage” could not have contemplated the voted-upon millage

because that subsection did not exist at that time; that reference must

have been solely to the nonvoted millage, now codified at section

1011.71(1). As the circuit court observed, had the Legislature intended to

include the additional voted-upon millage as part of charter school

funding, it could have amended the charter school statute, but there was

no amendment when the voted-upon millage provision was enacted.

Appellants contend that the “express language of section 1011.71(9)

specifically contemplates that the voted millage is combined with the

nonvoted millage” and together make up a school district’s total “current

operating discretionary millage.” In support of their position, appellants

cite language in subsection (9) stating that “a school district may levy . . .

additional millage for school operational purposes up to an amount that,

when combined with nonvoted millage levied under this section, does

not exceed the 10-mill limit . . . .” § 1011.71(9), Fla. Stat. (2018) (emphasis

added).

However, the use of the word “combined” does not indicate that both

the nonvoted millage and voted-upon millage together comprise the

“current operating discretionary millage,” as appellants suggest. Instead,

the context of the sentence makes clear that the use of the word

“combined” refers to the combination of the various millages for the

purpose of assessing whether the combined rate complies with the overall

constitutional limit on total assessed millage.

2. The phrase “Current Operating Discretionary Millage Levy”

in section 1002.33(17)(b) refers to a subset of the FEFP funds,

not a separate source of funds

The text of section 1002.33(17)(b) makes clear that the phrase “current

operating discretionary millage levy” refers to a source of funds which are

4 The charter school statute was enacted in 1996 (previously section 228.056,

Florida Statutes) and is now codified at section 1002.33, Florida Statutes. The

additional voted-upon millage was enacted in 2001 (previously section 236.25(6),

Florida Statutes) and is now codified at section 1011.71(9), Florida Statutes.

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a component of the district’s FEFP funds and does not include the separate

“additional” millage levy authorized under section 1011.71(9), which is

expressly excluded from the FEFP funds. Section 1002.33(17)(b) provides

that funding for students enrolled in charter schools is limited to the sum

of the school district’s operating funds from the FEFP and the General

Appropriations Act, and then provides examples of the subset of funds

included within the FEFP and the General Appropriations Act:

(b) The basis for the agreement for funding students enrolled

in a charter school shall be the sum of the school district’s

operating funds from the Florida Education Finance

program as provided in s. 1011.62 and the General

Appropriations Act, including gross state and local funds,

discretionary lottery funds, and funds from the school

district’s current operating discretionary millage levy;

divided by total funded weighted full-time equivalent students

in the school district; multiplied by the weighted full-time

equivalent students for the charter school. . . .

§ 1002.33(17)(b), Fla. Stat. (2018) (emphasis added).

Although section 1011.71(9) expressly states that revenues generated

pursuant to the voted-upon millage are excluded from the FEFP funds,

appellants contend that this clear legislative mandate has no bearing on

whether such revenues must be shared with public charter schools. They

contend that section 1002.33(17)(b) guarantees charter schools sources of

funding that exist outside of the FEFP, such as the “current operating

discretionary millage levy.”

However, the language of section 1002.33(17)(b) indicates that the

“current operating discretionary millage levy” is not a separate source of

funding apart from the FEFP. Rather, as the School Board notes, the

phrase is one item in a list following the word “including,” which indicates

that “gross state and local funds, discretionary lottery funds, and funds

from the school district’s current operating discretionary millage levy” are

all examples of operating funds from the FEFP and the General

Appropriations Act.

Appellants contend that the sources of funding listed after the word

“including” in section 1002.33(17)(b) are not illustrative of sources of FEFP

funding; they say the use of the word “including” exists only to clarify that

public charter schools are entitled to both state and local FEFP funds. To

support their position, appellants cite to a portion of a manual from the

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Florida Department of Education regarding Funding for Florida School

Districts, which states:

Categorical program funds, which include Florida School

Recognition, District Discretionary Lottery and Class Size

Reduction funds, and any special allocations are added to the

Net State FEFP Allocation to obtain the Total State Funding.

Based on this language, appellants claim that discretionary lottery funds

do not become part of the FEFP because they are “added on top of the

state’s net FEFP allocation to arrive at a district’s total state funding.”

As the School Board points out, appellants conflate the State’s “net”

FEFP allocation with the total amount of school district operating funds

from the FEFP. The state’s contribution to FEFP funding is not limited

solely to the “Net State FEFP Allocation,” as evidenced by the FEFP statute,

which confirms that categorical funds (which include discretionary lottery

funds) are part of the overall state FEFP funds distributed to the school

districts. See § 1011.62(6)(a), Fla. Stat. (2018). The very manual upon

which appellants rely even noted that discretionary lottery funds “are

added to the FEFP allocation that is distributed to the districts” and are

therefore a part of the FEFP funding.

Regarding the “current operating discretionary millage levy” referred to

in section 1002.33(17)(b), appellants assert that this is a source of funding

existing outside of the FEFP. However, subsection (5) of the FEFP statute

refers to the nonvoted-upon discretionary millage levy and contemplates

its inclusion in the total amount of locally contributed funds:

(5) Discretionary millage compression supplement.--The

Legislature shall prescribe in the General Appropriations Act,

pursuant to s. 1011.71(1), the rate of nonvoted current

operating discretionary millage that shall be used to calculate

a discretionary millage compression supplement. If the

prescribed millage generates an amount of funds per

unweighted FTE for the district that is less than the state

average, the district shall receive an amount per FTE that,

when added to the funds per FTE generated by the designated

levy, shall equal the state average.

§ 1011.62(5), Fla. Stat. (2018). Appellants acknowledge that “[t]he

compression is a part of the FEFP,” but argue that “the Nonvoted Millage

itself is not.” We agree with the School Board that it would be odd for the

State to provide, as part of the FEFP, a supplement based on a district’s

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current operating discretionary millage levy if that millage were not also a

component of the district’s FEFP funds. A logical reading of section

1002.33(17)(b) compels the conclusion that each of the items listed after

the word “including” are all components of the FEFP.

Because a voted millage levied under section 1011.71(9) is excluded

from the FEFP calculation and charter school funding is based on the

FEFP, the millage levied pursuant to the 2018 Referendum in this case

was not part of the “current operating discretionary millage” that must be

shared with the charter schools. The trial court properly concluded that

the Charter Schools were not entitled to a share of the revenues generated

from the referendum on this basis.

The legislative history of section 1011.71(9) does not support

appellants’ assertion that the School Board is required to share the

2018 Referendum revenues

After appellants filed the underlying lawsuit, section 1011.71(9) was

amended to require that tax revenues generated by a voter-approved

referendum be distributed to charter schools:

(9) In addition to the maximum millage levied under this

section and the General Appropriations Act, a school district

may levy, by local referendum or in a general election,

additional millage for school operational purposes up to an

amount that, when combined with nonvoted millage levied

under this section, does not exceed the 10-mill limit

established in s. 9(b), Art. VII of the State Constitution. Any

such levy shall be for a maximum of 4 years and shall be

counted as part of the 10-mill limit established in s. 9(b), Art.

VII of the State Constitution. For the purpose of distributing

taxes collected pursuant to this subsection, the term

“school operational purposes” includes charter schools

sponsored by a school district. Millage elections conducted

under the authority granted pursuant to this section are

subject to s. 1011.73. Funds generated by such additional

millage do not become a part of the calculation of the Florida

Education Finance Program total potential funds in 2001-

2002 or any subsequent year and must not be incorporated

in the calculation of any hold-harmless or other component of

the Florida Education Finance Program formula in any year.

If an increase in required local effort, when added to existing

millage levied under the 10-mill limit, would result in a

combined millage in excess of the 10-mill limit, any millage

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levied pursuant to this subsection shall be considered to be

required local effort to the extent that the district millage

would otherwise exceed the 10-mill limit. Funds levied under

this subsection shall be shared with charter schools based

on each charter school’s proportionate share of the

district’s total unweighted full-time equivalent student

enrollment and used in a manner consistent with the

purposes of the levy. The referendum must contain an

explanation of the distribution methodology consistent with

the requirements of this subsection.

§ 1011.71(9), Fla. Stat. (2019) (emphasis added).

Appellants contend that the amendment served to clarify, rather than

change, the law, thereby evidencing the Legislature’s intent that the voted

millage funds be shared with public charter schools all along.

We reject that contention because the legislative history does not

support it.

First, as the School Board notes, while the original version of the House

Bill proposing the amendment to section 1011.71(9) included a section

describing the proposed amendment as “amending and clarifying the use

of certain voted discretionary operating millages,” the final version of the

bill did not include the term “clarifying.” Fla. HB 7123, § 17 (2019).

Appellants also rely upon a “Final Bill Analysis” published by the House of

Representative’s Ways & Means Committee, but that source is not

persuasive because what ultimately prevails is the actual language of a

statute, not the wording that did not survive the legislative process. See

GTC, Inc. v. Edgar, 967 So. 2d 781, 789 n.4 (Fla. 2007) (noting that the

Florida Supreme Court is “not unified in its view of the use of legislative

staff analyses to determine legislative intent”); Am. Home Assur. Co. v.

Plaza Materials Corp., 908 So. 2d 360, 376 (Fla. 2005) (Cantero, J.,

concurring in part and dissenting in part) (proposing that “legislative staff

analyses add nothing to an investigation of legislative intent”).

Second, the Legislature ultimately did not adopt language which would

have made the amendment retroactive. An earlier version of the bill

proposing the amendment stated: “The provisions of this act relating to

ss. 1011.71 and 1002.33, Florida Statutes, amending and clarifying the

use of certain voted discretionary operating millages levied by school

districts, apply to revenues collected on or after July 1, 2019.”

(Emphasis added). However, Chapter 2019-42, Laws of Florida, Section

17, deleted the word “clarifying” and creates a prospective application only;

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it states, “The provisions of this act relating to s. 1011.71, Florida Statutes,

amending the use of certain voted discretionary operating millages levied

by school districts, apply to such levies authorized by a vote of the

electors on or after July 1, 2019.” Ch. 2019-42 § 17, Laws of Fla.

(emphasis added). It is clear from the context of the sentence that all

provisions relating to section 1011.71, not just the portion pertaining to

the limited use of the funds, apply prospectively.

We reject appellants’ argument that section 1011.71 should be viewed

as a clarification amidst a “growing controversy about whether voted

operating discretionary millage revenues must be shared with the public

charter schools.” The Florida Supreme Court has adopted a policy of

declining to rewrite legislation by viewing amendments as being

“clarifications” of statutes enacted many years earlier. See, e.g., State

Farm Mut. Auto Ins. Co. v. Laforet, 658 So. 2d 55, 62 (Fla. 1995) (“[A]

clarifying amendment to a statute that is enacted soon after controversies

as to the interpretation of a statute arise may be considered as a legislative

interpretation of the original law and not as a substantive change. It would

be absurd, however, to consider legislation enacted more than ten years

after the original act as a clarification of original intent.”); Parole Comm’n

v. Cooper, 701 So. 2d 543, 544–45 (Fla. 1997) (“[I]t is inappropriate to use

an amendment enacted ten years after the original enactment to clarify

original legislative intent.”).

Here, the pertinent provision regarding the voted-upon millage

remained unchanged from the time of its enactment in 2001 until July 1,

2019. Applying Laforet and Cooper, we conclude that it is inappropriate

to consider an amendment passed 18 years after the original enactment

as a clarification of the original enactment.

Finally, we have considered appellants’ constitutional argument and

conclude that Article IX, Section 1(a) of the Florida Constitution does not

alter the statutory interpretation contained in this opinion.

Affirmed.

MAY, J., concurs.

GERBER, J., dissents with opinion.

GERBER, J., dissenting.

I respectfully dissent. By excluding charter schools from that portion

of the current discretionary operating millage levy permitted by section

1011.71(9), as approved by voters in the 2018 Referendum, the school

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district is violating section 1002.33(17)’s requirement that “[s]tudents

enrolled in a charter school, regardless of the sponsorship, shall be funded

as if they are in a basic program or a special program, the same as

students enrolled in other public schools in the school district.” (emphasis

added). See Bank of N.Y. Mellon v. Glanville, 252 So. 3d 1120, 1127 (Fla.

2018) (“As with any matter involving an issue of statutory interpretation,

courts must first look to the actual language of the statute and examine

the statute’s plain meaning.”) (citation and internal quotation marks

omitted).

I would reverse the circuit court’s final judgment, and remand for the

circuit court to enter a new final judgment finding the 2018 Referendum

was illegal and therefore void.

A. Interpreting sections 1002.33(17) and 1011.71(9) in harmony

according to plain meaning favors the charter schools’ position.

The method by which students enrolled in charter schools are funded,

and the sources from which such funding is derived, are provided in

Section 1002.33(17), Florida Statutes (2018), entitled “Charter schools.”

That section provides, in pertinent part:

(17) Funding. -- Students enrolled in a charter school,

regardless of the sponsorship, shall be funded as if they

are in a basic program or a special program, the same as

students enrolled in other public schools in the school

district. . . .

...

(b) The basis for the agreement for funding students

enrolled in a charter school shall be the sum of the school

district’s operating funds from the Florida Education Finance

Program as provided in s. 1011.62 and the General

Appropriations Act, including gross state and local funds,

discretionary lottery funds, and funds from the school

district’s current operating discretionary millage levy;

divided by total funded weighted full-time equivalent students

in the school district; multiplied by the weighted full-time

equivalent students for the charter school. . . .

§ 1002.33(17)(b), Fla. Stat. (2018) (emphases added).

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Section 1011.71, Florida Statutes (2018), entitled “District school tax,”

describes the sources by which “funds from the school district’s operating

discretionary millage levy” may be generated. That section provides, in

pertinent part:

(1) . . . [E]ach district school board desiring to participate in

the state allocation of funds for current operation as

prescribed by s. 1011.62(18) shall levy . . . a millage rate not

to exceed the amount certified by the commissioner as the

minimum millage rate necessary to provide the district

required local effort for the current year, pursuant to s.

1011.62(4)(a)1. In addition to the required local effort

millage levy, each district school board may levy a

nonvoted current operating discretionary millage. The

Legislature shall prescribe annually in the appropriations act

the maximum amount of millage a district may levy.

....

(9) In addition to the maximum millage levied under this

section and the General Appropriations Act, a school district

may levy, by local referendum or in a general election,

additional millage for school operational purposes up to

an amount that, when combined with nonvoted millage

levied under this section, does not exceed the 10-mill

limit established in s. 9(b), Art. VII of the State Constitution.

. . . Funds generated by such additional millage . . . must not

be incorporated in the calculation of any hold-harmless or

other component of the Florida Education Finance Program

formula in any year. . . .

§ 1011.71(1), (9), Fla. Stat. (2018) (emphases added).

Both sections 1011.71(1) and (9) use the words “may levy” to describe

how a school district may increase its operating millage above the required

operating millage also described in section 1011.71(1). That is, a school

board “may levy” an increased operating millage by its own vote under

section 1011.71(1), or a school board “may levy” an increased operating

millage by voting to place an increased operating millage on the ballot and

obtaining voter approval under section 1011.71(9). The consistent use of

the words “may levy” makes both increased operating millages

discretionary. See Fla. Bar v. Trazenfeld, 833 So. 2d 734, 738 (Fla. 2002)

(“The word ‘may’ when given its ordinary meaning denotes a permissive

term rather than the mandatory connotation of the word ‘shall.’”).

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Because the increased operating millages permitted by sections

1011.71(1) and (9) are both discretionary, and because a school district’s

“current operating discretionary millage levy” is to be included in the

method of funding students enrolled in a charter school under section

1002.33(17)(b), the school district’s exclusion of charter schools from the

2018 Referendum violated section 1002.33(17)’s requirement that

“[s]tudents enrolled in a charter school, regardless of the sponsorship,

shall be funded as if they are in a basic program or a special program, the

same as students enrolled in other public schools in the school district.”

See Sch. Bd. of Palm Beach Cty. v. Survivors Charter Schs., Inc., 3 So. 3d

1220, 1234 (Fla. 2009) (“[W]e give full effect to all statutory provisions and

construe related statutory provisions in harmony with one another.”)

(citation and internal quotation marks omitted).

B. The school district’s arguments lack merit.

1. The school district misinterprets sections 1002.33(17) and

1011.71(9) as providing two distinct funding mechanisms. The

sections are related and must be read in harmony.

The school district argues sections 1002.33(17) and 1011.71(9) provide

two distinct funding mechanisms and, therefore, section 1002.33(17) has

no application to the instant case. According to the school district,

“[g]eneral funding for charter schools under [section 1002.33(17)(b)]

includes a mandatory requirement that [Florida Education Finance

Program] funds be distributed to charter schools,” but section 1011.71(9)

explicitly states “additional millage for school operational purposes”

generated after a local referendum or general election “do not become part

of the calculation of the Florida Education Finance Program.”

The flaw in the school district’s reasoning is that charter schools’

general funding under section 1002.33(17)(b) does not include only Florida

Education Finance Program components. Rather, section 1002.33(17)(b)’s

plain language provides charter schools’ funding is “the sum of” three

sources: (1) “the school district’s operating funds from the Florida

Education Finance Program as provided in s. 1011.62 and the General

Appropriations Act, including gross state and local funds,” (2)

“discretionary lottery funds,” and (3) “funds from the school district’s

current operating discretionary millage levy.” That sum is then “divided

by total funded weighted full-time equivalent students in the school

district; multiplied by the weighted full-time equivalent students for the

charter school.”

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The flaw in the school district’s reasoning arises from its misapplication

of the word “including” within section 1002.33(17)(b). According to the

school district, the word “including” modifies each funding component

which follows – “gross state and local funds, discretionary lottery funds,

and funds from the school district’s current operating discretionary

millage levy” – thus making each component a part of the Florida

Education Finance Program formula.

However, if each funding component following the word “including”

already was included in “the school district’s operating funds from the

Florida Education Finance Program as provided in s. 1011.62 and the

General Appropriations Act,” what else is the fund for students enrolled in

a charter school to be “the sum of”? The question cannot be answered,

because interpreting the word “including” as modifying each funding

component stated within section 1002.33(17)(b) improperly renders the

phrase “the sum of” as mere surplusage. See Sch. Bd. of Palm Beach Cty.,

3 So. 3d at 1233 (“Basic to our examination of statutes, and an important

aspect of our analysis here, is the elementary principle of statutory

construction that significance and effect must be given to every word,

phrase, sentence, and part of the statute if possible, and words in a statute

should not be construed as mere surplusage.”) (citation and internal

quotation marks omitted).

The only logical construction of section 1002.33(17)(b) is that the word

“including” modifies only its nearest reasonable referent, that is, “gross

state and local funds.” See Scherer v. Volusia Cty. Dep’t of Corrs., 171 So.

3d 135, 138 (Fla. 1st DCA 2015) (“The [nearest-reasonable-referent] canon

holds simply that, whether coming before or after what is modified,

modifiers (adjectives, adverbs, prepositional phrases, restrictive clauses)

should be read as modifying the nearest noun, verb, or other sentence

element to which they can reasonably be said to pertain.”) (emphasis

added).

Thus, the proper construction of section 1002.33(17)(b) is that the basis

for the agreement for funding students enrolled in a charter school shall

be the sum of “the school district’s operating funds from the Florida

Education Finance Program as provided in s. 1011.62 and the General

Appropriations Act, including gross state and local funds,” “discretionary

lottery funds,” and “funds from the school district’s current operating

discretionary millage levy.”

As I have explained in Section A above, “funds from the school district’s

current operating discretionary millage levy” include increased operating

millages permitted by both sections 1011.71(1) and (9).

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2. The school district overlooks section 1002.33(17)’s plain

meaning that charter school students shall be funded by the same

method as other public school students.

The school district correctly argues that section 1002.33(17) describes

the method of funding charter school students. However, the school

district then argues the method of funding charter school students is not

the same as the method for funding public school students, despite the

plain meaning of section 1002.33(17)’s first sentence – “Students enrolled

in a charter school, regardless of the sponsorship, shall be funded as if

they are in a basic program or a special program, the same as students

enrolled in other public schools in the school district.” (emphasis added).

The school district attempts to justify its disregard of the plain meaning

of “the same as” by its own application the nearest-reasonable-referent

canon. According to the school district:

Applying this principle to the sentence at issue, it is clear that

the modifier “the same as” must be read to modify the entire

nearest antecedent phrase – “shall be funded as if they are in

a basic program or a special program.” [The charter schools]

simply ignore the words “as if they are in a basic program or

a special program” between “funded” and “the same as.” . . .

It defies logic to interpret “the same as” to modify only the first

few words in the antecedent clause but not the nearer,

remaining words. It would also render the words “shall be

funded as if they are in a basic program or a special program”

meaningless, contrary to basic principles of statutory

construction. It is an “elementary principle of statutory

construction that significance and effect must be given to

every word, phrase, sentence, and part of the statute if

possible, and words in a statute should not be construed as

mere surplusage.” Mendenhall v. State, 48 So. 3d 740, 749

(Fla. 2010).

(emphasis added).

The school district misapplies the nearest-reasonable-referent canon

by considering only the “nearest antecedent phrase.” (emphasis added).

As our sister court explained, the nearest-reasonable-referent canon may

rely on a modifier which “com[es] before or after what is modified.” See

Scherer, 171 So. 3d at 138 (“The [nearest-reasonable-referent] canon holds

simply that, whether coming before or after what is modified, modifiers

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(adjectives, adverbs, prepositional phrases, restrictive clauses) should be

read as modifying the nearest noun, verb, or other sentence element to

which they can reasonably be said to pertain.”) (emphasis added); see also

Scalia and Garner, Reading the Law: The Interpretation of Legal Texts 152

(1st ed. 2012) (the nearest-reasonable-reference canon “applies not just to

words that precede the modifier, but also to words that follow it.”)

(emphasis added).

Applying the nearest-reasonable-referent canon to section

1002.33(17)’s first sentence, the modifier “the same as” may apply to the

antecedent phrase “shall be funded as if they are in a basic program or a

special program,” or may apply to the subsequent phrase “students

enrolled in other public schools in the school district.” The question is, to

paraphrase our sister court, to which nearest sentence element can the

modifier “the same as” reasonably be said to pertain? In my opinion, the

most reasonable interpretation is that “the same as” modifies the

subsequent phrase “students enrolled in other public schools in the

district,” because “the same as” draws a direct comparison to the earlier

phrase “[s]tudents enrolled in a charter school.”

In reaching my opinion, I have not ignored (as the school district has

faulted the charter schools for ignoring) the antecedent phrase “as if they

are in a basic program or a special program” within section 1002.33(17)’s

first sentence. Having reviewed the charter schools’ briefs, I do not believe

the charter schools have ignored that phrase either.

In fact, the antecedent phrase “as if they are in a basic program or a

special program” supports the charter schools’ argument that charter

school students are to be funded the same as other public school students.

That is because “basic program” and “special program” are statutorily-

defined terms which plainly apply to both charter school students and

public school students.

Section 1011.61(6), Florida Statutes (2018), defines “Basic programs”

as “includ[ing], but are not limited to, language arts, mathematics, art,

music, physical education, science, and social studies.”

Section 1003.01(10), Florida Statutes (2018), defines “Special program”

as synonymous with “Alternative measures for students with special

needs” and “mean[ing] measures designed to meet the special needs of a

student that cannot be met by regular school curricula.”

Section 1003.01(3)(a), Florida Statutes (2018), which defines

“Exceptional student,” elucidates what types of “special programs” exist:

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“‘Exceptional student’ means any student who has been determined

eligible for a special program in accordance with rules of the State Board

of Education. The term includes students who are gifted and students

with disabilities who have an intellectual disability; autism spectrum

disorder; a speech impairment; a language impairment; an orthopedic

impairment; another health impairment; traumatic brain injury; a visual

impairment; an emotional or behavioral disability; or a specific learning

disability, including, but not limited to, dyslexia, dyscalculia, or

developmental aphasia; students who are deaf or hard of hearing or dual

sensory impaired; students who are hospitalized or homebound; children

with developmental delays ages birth through 5 years, or children, ages

birth through 2 years, with established conditions that are identified in

State Board of Education rules pursuant to s. 1003.21(1)(e).” (emphasis

added).

Based on the foregoing, I agree with the charter schools’ argument that,

under section 1002.33(17)’s plain meaning, “Students enrolled in a charter

school, regardless of the sponsorship, shall be funded as if they are in a

basic program or a special program, the same as students enrolled in

other public schools in the school district.” (emphasis added).

3. Contrary to both sides’ arguments, the Legislature’s 2019

amendment of section 1011.71(9) should not affect our

interpretation of the 2018 version of section 1011.71(9).

In 2019, the Legislature amended section 1011.71(9) to add the

following language shown in bold:

(9) In addition to the maximum millage levied under this

section and the General Appropriations Act, a school district

may levy, by local referendum or in a general election,

additional millage for school operational purposes up to an

amount that, when combined with nonvoted millage levied

under this section, does not exceed the 10-mill limit

established in s. 9(b), Art. VII of the State Constitution. Any

such levy shall be for a maximum of 4 years and shall be

counted as part of the 10-mill limit established in s. 9(b), Art.

VII of the State Constitution. For the purpose of distributing

taxes collected pursuant to this subsection, the term

“school operational purposes” includes charter schools

sponsored by a school district. Millage elections conducted

under the authority granted pursuant to this section are

subject to s. 1011.73. Funds generated by such additional

millage do not become a part of the calculation of the Florida

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Education Finance Program total potential funds in 2001-

2002 or any subsequent year and must not be incorporated

in the calculation of any hold-harmless or other component of

the Florida Education Finance Program formula in any year.

If an increase in required local effort, when added to existing

millage levied under the 10-mill limit, would result in a

combined millage in excess of the 10-mill limit, any millage

levied pursuant to this subsection shall be considered to be

required local effort to the extent that the district millage

would otherwise exceed the 10-mill limit. Funds levied under

this subsection shall be shared with charter schools based

on each charter school’s proportionate share of the

district’s total unweighted full-time equivalent student

enrollment and used in a manner consistent with the

purposes of the levy. The referendum must contain an

explanation of the distribution methodology consistent with

the requirements of this subsection.

§ 1011.71(9), Fla. Stat. (2019) (emphasis added).

According to the charter schools, the 2019 Legislature’s addition of the

bolded sentences was meant to clarify the Legislature’s intent for the 2018

Referendum’s approved millage increase under section 1011.71(9) “to be

shared with public charter schools all along.” In support, the charter

schools cite several Florida Supreme Court cases, including Matthews v.

State, 760 So. 2d 1148 (Fla. 2000), to argue “a court may consider an

amendment to a statute soon after controversies as to the interpretation of

the original act arise as legislative interpretation of the original law. Such

subsequent amendments to a statute, which serve to clarify rather than

change existing law, are entitled to substantial weight in construing the

earlier law.” Id. at 1150 (citation omitted; emphasis added).

Here, the charter schools argue, a growing controversy existed two years

earlier about whether voted operating discretionary millage revenues must

be shared with public charter schools. See Indian River Charter High Sch.,

Inc. v. Sch. Bd. of Indian River Cty., Case No. 31- 2016-CA-000432 (Fla. 19th

Cir. Ct. June 13, 2017) (circuit court held the Indian River County School

Board was required to share voted millage levy revenues with charter

schools). Thus, the charter schools argue, the Legislature’s 2019

amendment to section 1011.71(9) was meant to clarify “[i]t was the intent

of the Legislature all along for Voted Millage funds to be shared with

public charter schools, even under the prior version of section

1011.71(9).”

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On the other hand, the school district argues the 2019 Legislature’s

addition of the bolded sentences necessarily means those provisions did

not exist within the 2018 version of section 1011.71(9). In support, the

school district cites Arnold v. Shumpert, 217 So. 2d 116, 119 (Fla. 1968)

(“[W]hen a statute is amended, it is presumed that the Legislature intended

it to have a meaning different from that accorded to it before the

amendment.”). The school district also counters the charter schools’

reliance on cases like Matthews with other Florida Supreme Court cases

holding it is inappropriate to use an amendment enacted several years

after the original enactment to “ clarify” original legislative intent. See,

e.g., State Farm Mut. Auto Ins. Co. v. Laforet, 658 So. 2d 55, 62 (Fla. 1995)

(“[A] clarifying amendment to a statute that is enacted soon after

controversies as to the interpretation of a statute arise may be considered

as a legislative interpretation of the original law and not as a substantive

change. It would be absurd, however, to consider legislation enacted more

than ten years after the original act as a clarification of original intent[.]”).

In my opinion, rather than attempting to choose one viable statutory

construction canon over another in determining the 2019 amendment’s

effect on section 1011.71(9), we should simply interpret the 2018 version

of section 1011.71(9) as written. If we had been called upon to interpret

the 2018 version of section 1011.71(9) before the 2019 amendment, we

would have done so, using other statutory construction canons available

for our consideration.

Also contrary to the parties’ positions, the 2019 amendment’s prior

drafts or final bill analysis should not affect our interpretation of the 2018

version of section 1011.71(9). According to the school district, the

Legislature considered in an earlier bill draft, but ultimately did not

adopt, language which would have made the 2019 amendment

retroactive. Instead, the Legislature included express language providing

that the 2019 amendment applies prospectively, which the school district

says shows the Legislature did not intend the changes to “clarify” a

requirement that already applied. On the other hand, the charter schools

argue, the 2019 amendment’s final bill analysis states it was intended “to

clarify that the term ‘school operational purposes’ includes charter schools

sponsored by a school district.” (emphasis added).

The school district’s reliance on earlier drafts, and the charter schools’

reliance on a final bill analysis, are simply not persuasive as a matter of

law. See Rollins v. Pizzarelli, 761 So. 294, 299 (Fla. 2000) (“[W]hen the

statutory language is clear, legislative history cannot be used to alter the

plain meaning of the statute.”); American Home Assur. Co. v. Plaza

Materials Corp., 908 So. 2d 360, 376 (Fla. 2005) (Cantero, J., concurring

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in part and dissenting in part) (proposing that “legislative staff analyses

add nothing to an investigation of legislative intent”).

Conclusion

In sum, our review should be limited to the 2018 versions of sections

1002.33(17) and 1011.71(9), and how those statutes may be read in

harmony according to their plain meaning. In my opinion, by excluding

charter schools from that portion of the current discretionary operating

millage levy provided in section 1011.71(9), as approved by voters in the

2018 Referendum, the school district is violating section 1002.33(17)’s

requirement that “[s]tudents enrolled in a charter school, regardless of the

sponsorship, shall be funded as if they are in a basic program or a special

program, the same as students enrolled in other public schools in the

school district.” (emphasis added).

Based on the foregoing, I would reverse the circuit court’s final

judgment, and remand for the circuit court to enter a new final judgment

finding the 2018 Referendum was illegal and therefore void.

* * *

Not final until disposition of timely filed motion for rehearing.

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