Petition for Writ of Certiorari — Dade County v. Marine Exhibition Corp.

in the > FiLED

S upreme Court SEP 20 1974

of the MICHAEL RODAX URCLER

Gnited States

CASE NO. qa

74-320

DADE COUNTY, a political subdivision of the State of

Florida: R. RAY GOODE, as County Manager of

Dade County, Florida; A. H. BLAKE, as Acting Tax

Assessor of Dade County, Florida; R. K. OVER-

STREET, as Tax Collector of Dade County, Florida;

and J. ED STRAUGHN, Director, Department of

Revenue, State of Florida,

Petitioners,

vs.

MARINE EXHIBITION CORPORATION,

a, Florida corporation,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE DISTRICT COURT OF APPEAL

OF FLORIDA, THIRD D) STRICT

STUART SIMON

Dade County Attorney

R. A. Cuevas. Jr.

Assistant County Attorney

1626 Dade County Courthouse

Miami. Florida 33130

MIAME REVIEW — 371-4853 — 377-3721

INDEX

JURISDICTION

QUESTIONS PRESENTED —.. -.. ..------ 2

CONSTITUTIONAL PROVISIONS INVOLVED . 2

REASONS FOR GRANTING THE WRIT _____- 4

CONCLUSION — . Ses ee Ra Ot oak wren 7

CERTIFICATE OF SERVICE ~ 8

APPENDIX

Opinion, District Court of a of Florida, Third

eee A eee ee ae

Defendants’ Answer to Complaint _. App. 3

Affidavit of A. H. Blake aie App. 4

INERT REPAY AY, STURT RENT 8 eR

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#3

Il

CITATIONS

Case

Ansin v. Thurston,

101 So.2d 808, 810 (Fla., 1958)

Calpinetta v. Schields,

70 So.2d p. 573 (Fla., 1954)

Dade County, etc., et al. v. Marine Exhibition Cor-

poration,

296 So.2d 652 (3d D.C.A., Fla., 1974)

Lehnhausen v. Lake Shore Auto Parts Co.,

410 U.S. 356, 93 S.Ct. 1001, 35 L.Ed.2d 351,

(1973) ae ;

Morrissey v. Curran,

423 F.2d 393 (2d Cir., 1970), cert. denied, 399

U.S. 928, 90 S.Ct. 2245, 26 L.Ed.2d 796; 48

ALR 2d 1188

State ex rel. Miller v. Doss,

146 Fla. 752, 2 So.2d 303 (1941)

Straughn v. Camp,

293 So.2d 689 (Fla., 1974)

Trimble v. Seattle,

231 U.S. 683, 689, 34 S.Ct. 218, 219, 58 L.Ed.

435 (1914)

Page

2,4

_

III

CITATIONS (cont.)

Case Page

United States v. Detroit,

355 U.S. 466, 78 S.Ct. 474, 2 L.Ed. 2d 424,

(1958) . 2 ERT ARENT pee 5

Williams v. Florida,

399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446,

449, note5 Sys eee reek Reese 4

CONSTITUTION

U. & Cee S.A oe 2,3

ra. Coa ar So oe 4

STATUTES

28 U.S.C.A. $1257 (3)

RULES

Rule 4.5 ¢ (6), Florida Appellate Rules 4

in the

Supreme Court

of the

Gnited States

CASE NO. -

DADE COUNTY, a political subdivision of the State of

Florida; R. RAY GOODE, as County Manager of

Dade County, Florida; A. H. BLAKE, as Acting Tax

Assessor of Dade County, Florida; R. K. OVER-

STREET, as Tax Collector of Dade County, Florida;

and J. ED STRAUGHN, Director, Department of

Revenue, State of Florida,

Petitioners,

v8.

MARINE EXHIBITION CORPORATION,

a Florida corporation,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE DISTRICT COURT OF APPEAL

OF FLORIDA, THIRD DISTRICT

2

Petitioners, the Dade County taxing authorities, pray

that this Court issue a writ of certiorari to review the

judgment of the District Court of Appeal of Florida, Third

District, entered in Dade County etc., et al v. Marine Ex-

hibition Corporation, 296 So.2d 652 (3d D.C.A., Fla.

1974)!

JURISDICTION

The judgment of the District Court of Appeal of

Florida, Third District, was entered on June 25, 1974.

No rehearing was applied for. The jurisdiction of this

Court is invoked under 28 U.S.C.A. $1257(3).

QUESTIONS PRESENTED

Can the Miami Seaquarium be exempted from ad

valorem taxation on the basis of the use it makes of its

property, while other private tourist attractions which put

their property te the same use as the Seaquarium are

taxed?

CONSTITUTIONAL PROVISIONS INVOLVED

The constitutional provision involved is U.S. Const.

amend. XIV §1 “No state shall . . . deny to any person

within its jurisdiction the equal protection of the laws.”

STATEMENT

Marine Exhibition Corporation, a private corporation

for profit, leases county-owned land and operates the

14 copy of the state appellate court opinion sought to be reviewed

comprises pages 1-2 of the Appendix hereto.

3

Miami Seaauarium thereon as a tourist attraction (R.

108-109).

For 1972, the leasehold interest comprising the Sea-

quarium was taxed (R. 108-109).

The Seaquarium filed suit seeking exemption (R. 1-

11).

By way of affirmative defense, the local taxing au-

thorities averred that the exemption sought would amount

to preferential tax treatment in violation of the equal

protection clause of the Fourteenth Amendment to the

United States Constitution (R. 106).?

In opposition to a motion for summary judgment, the

tax assessor testified (by affidavit) :

1. That other private tourist attractions in Dade

County, such as the Miami Serpentarium, the

Monkey Jungle, the Orchid Jungle and the

Parrot Jungle, which made the same use of

their property as the Seaquarium made of its

property, were taxed; and

2. That over 23% of the total value of all prop-

erty located in Dade County was exempted

from taxation in 1972.

(R. 109)?

; - 2Page * Appendix hereto, infra.

3Pages 4-5, Appendix h>reto, infra.

4

The trial court granted summary judgment dec!aring

the leasehold interest comprising’ the Seaquarizm to be

exempt from taxation (R. 219-220).

The local taxing authorities appealed to the District

Court of Appeal of Florida, Third District, assigning as

error the trial court’s entry of summary judgment

(R. 222). The appellate court held that different treatment

of members of the same class did not preclude summary

judgment.

This petition for writ of certiorari ensued.*

REASONS FOR GRANTING THE WRIT

The decision below forces the local taxing authorities

to participate in the denial of equal protection of the laws.

Yhe Seaquarium was judicially exempted from taxation on

the basis of the use it made of its property.’ All other

private tourist attractions which made the same use of

their properties as the Seaquarium made of its property

were taxed. The opinion below, on its face, treaus members

$Petitioners have also sought certio:: ri from the Florida Supreme

Court to review the decision below. Dade County v. Marine Exhibition

Corp., (Florida Supreme Court Case No. 45.923), (petition for cer-

tiorari filed July 25, 1974). Under Florida law, if t! > Supreme Court

of Florida holds that it is without jurisdiction to eniertain the petition

for certiorari, the District Court of Appeal becomes the highest court

from which a decision could be had. See, Fla. Const.. Art. V §$3(b) 3;

Florida Appellate Rule 1.5 ¢ (6); Ansin v. Thurston, 101 So.2d 808,

810 (Fla.. 1958). Cf. Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893,

% L.Fd2d 146. 119. note 5. For this reason, petitioners have con-

temporaneously filed with their petition, a motion to defer considera-

tion of petition pending the decision of the Supreme Court of Flozida

on the issue of its jurisdiction.

SUnder Florida law. exemptions from ad valorem taxation are

predicated upon use. Straughn v. Camp, 293 So.2d 689 (Fla.. 1974).

5

of the same class differently. There is no reasonable bavis

for treating the Seaquarium differently from the Miami

Serpertarium, the Parrot Jungle, the Orchid Jungle, the

Monkey Jungle or any other private tourist attraction in

greater Miami. Cf. Lehnhausen v. Lake Shore Auto Parts

Co., 410 U.S. 356, 93 S.Ct. 1001, 35 L.Ed.2d 351, (1973) ;

United States v. Detroit, 355 U.S. 466, 78 S.Ct. 474, 2

L.Ed.2d 424, (2958).

For the tax year involved in this case, the cumulative

effect of exemptions on the property tax base for Dade

County is staggering — almost one quarter of the property

in the county (23%) was exemyved. There was 14.4 billion

dollars’ worth of property in the county in 1972 — 3.4

billion dollars’ worth of which was exempted (R. 109).°

Florida has judicially recognized that exemptions “cast

a grea‘x¢ burden on other taxpayers.” State ex rel. Miller

v. Doss, 146 Fla. 752, 2 So.2d 308 (1941). The opinion be-

low increases this already substantial burden by requiring

members of the same class to be treated differently with

no reasonable basis therefor.

Speaking for this Honorable Court on the issue of

taxability of leasehold interests in government property,

Mr. Justice Holmes wrote in Trimble v. Seattle, 231 U.S.

683, 689, 34 S.Ct. 218, 219, 58 L.Ed. 485 (1914):

“If these leaseholds are not taxable, they are a

favored class of rroperty; for ordinarily lease-

holds are taxed even if they are lumped and

included in the value of the fee. When an interest

~ePages 45, Appendix hereto, infra.

6

in land, whether freehold or for years, is severed

from the public domain and put into private

hands, the natural implication is that it goes

there with the ordinary incidents of private prop-

erty, and therefore is subject to being taxed.”

The holding below is in direct conflict with the opiaion

of this Court.’

7The Seaquarium’s motion for summary judgment against the local

taxing authorities was granted. The trial court can enter judgment

against the movant where the opposing party is entitled to judgment as

a matter of law. Calpinetta v. Schields, 70 So.2d p. 573 (Fla., 1954):

Morrissey v. Curran, 123 F.2d 393 (2d Cir., 1970). cert. denied, 399

U.S. 928. 90 S.Ct. 2245. 26 L.Fd.2d 796: 48 ALR 2d 1188.

Fy

&

Dae hag nd

7

CONCLUSION

For the foregoing reasons, this petition for a writ of

certiorari should be granted.

Respectfully submitted,

STUART L. SIMON

STUART SIMON

Dade County Attorney

1626 Dade County Courthouse

Miami, Florida 33130

R. A. CUEVAS, JR,

R. A. Cuevas, Jr.

Assistant County Attorney

tT BI ER

aR ee

8

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that 3 true and correct printed

copies of the foregoing Petition for Writ of Certiorari to

the District Court of Appeal of Florida, Third District were

mailed this/f day of September, 1974, to WOODROW M.

MELVIN, JR., ESQUIRE, Mershon, Sawyer, Johnston,

Dunwody & Cole, 1600 First National Bank Building,

Miami, Florida 33131, Attorneys for Respondent.

STUART LL. SIMON

STUART SIMON

Dade County Attorney

R. A. CUEVAS, JR.

R. A. Cuevas, Jr.

Assistant County Attorney

IN THE DISTRICT COURT OF APPEAL

Oi FLORIDA

THIRD DISTRICT

JANUARY TERM, A.D. 1974

CASE NO. 73-995

DADE COUNTY, etc., et al.,

Appellants,

vs.

MARINE EXHIBITION CORP.,

a Florida corporation,

Appellee.

Opinion filed June 25, 1974.

PER CURIAM.

The appellant is Dade County, Florida. It appeals a

summary final judgment declaring that the leasehold in-

terest of the Marine Exhibition Corporation is not subject

to taxation. The Marine Exhibition Corporation is the op-

erator of the Miami Seaquarium. The corporation obtaised

the property in 1954 upon a lease from Dade County after

Dade County had secured the land from the State. The

deed provided that the County was to use the land for a

public purpose. Pursuant to this provision, the County

leased the land for a marine exhibit. The County agreed

that the leasehold interest would not be taxed unless the

laws of the State required it to be, and no taxes were levied

until *969. The tax here concerned is for the year 1972.

i

iq

Me ea

sia RN dice as

248 a

;

App. 2

In 1969, the Seaquarium property was exempted by the

Board of Equilization and has been exempted as to the

1970 and 1971 taxes by order of the circuit court.

The appellant maintains that a genuine issue of ma-

terial fact exists as to whether or not the property was on

January 1, 1972 used for a public purpose. The only factual

matter relied upon to create this issue is the affidavit of

the then acting tax assessor of Dade County, as follows:

* * *

“5. The predominant use made by the Marine

Exhibition Corporation of the subject leasehold

in 1972 was for a private, profit-making venture.

More specifically, the vast majority of those mem-

bers of the public who visited the Miami Sea-

quarium paid a substantial admission fee, the

predeminant portion of which inured to the

private benefit of the Marine Exhibition Cor-

poration. In this sense, the operation of the

subject leasehold comprising the Miami Sea-

quarium is no different than other privately

owned tourist attractions located in Dade County,

Florida, which were not tax exempt for 1972 as:

the Miami Serpentarium, the Monkey Jungle, the

Orchid Jungle, the Parrot Jungle.”

* * *

The affidavit is insufficient to raise an issue. The

fundamental questions presented by this case have been

answered by the Supreme Court of Florida in Dade

County v. Pan Ameyican World Airways, Fla. 1973,

275 So.2d 505.

Affirmed.

SA Pe VR ARSS rete Paar tal)

App. 3

IN THE CIRCUIT COURT OF THE ELEVENTH

JUDICIAL CIRCUIT OF FLORIDA IN AND FOR

DADE COUNTY (Gen. Jur. Div.)

NO. 72-23072

MARINE EXHIBITION CORP.,

a Florida corporation, Plaintiff

VS.

DADE COUNTY,

a political subdivision of the State of Florida, et al.,

Defendants.

DEFENDANTS’ ANSWER TO COMPLAINT

Defendants answer the complaint filed herein as

follows:

* * *

11. By way of affirmative defense, they state that

the exemption sought by the plaintiff herein amounts to

preferential tax treatment and would be violative of the

equal protection clause of the Fourteenth Amendment of

the Constitution of the United States.

WHEREFORE, defendants pray that this cause be

dismissed as to them with costs to be assessed against the

plaintiff.

STUART SIMON

County Attorney

1626 Dade County Courthouse

Miami, Florida 33130

By: Dae Ape te aren eee

R. A. Cuevas, Jr.

Assistant County Attorney

[CERTIFICATE OF Service OmirTeD|

Cats sonra taka

5 ASR ETS

App. 4

(TITLE OMITTED]

AFFIDAViT OF A. H. BLAKE

BEFORE ME, the undersigned authority, personally

appeared A. H. BLAKE, who being first duly sworn,

deposes on his oath and says:

1. Iam over 21 years of age and otherwise sui juris.

2. Iam currently employed by Dade County as Tax

Assessor. As of January 1, 1972, I was Acting Tax

Assessor.

3. As Acting Tax Assessor, I was charged with over-

all responsibility for determining the taxability of all

property located within Dade County.

4. I am familiar with the financial operation and

actual use made during the 1972 tax year of the subject

leasehold comprising the Miami Seaquarium.

5. The predominant use made by the Marine Ex-

hibition Corporation of the subject leasehold in 1972 was

for a private, profit-making venture. More specifically, the

vast majority of those members of the public who visited

the Miami Seaquarium paid a substantial admission fee,

the predominant portion of which inured to the private

benefit of the Marine Exhibition Corporation. In this sense,

the operation of the subject leasehold comprising the Miami

Seaquarium is no different than other privately owned

tourist attractions located in Dade County, Florida, which

were not tax exempt for 1972 such as: the Miami Serpen-

tarium, the Monkey Jungle, the Orchid J ungle, the Parrot

Jungle.

App. 5

6. For the 1972 tax year, the total value of real

property, personal property, railroad and telegraph prop-

erty located in Dade County was $14,419,981,729.00. The

total value of exempt property for all exemptions allowable

under Florida Statutes for the 1972 tax year was

$3,406,234,031.00, The total value of taxable property in

Dade County for the 1972 tax year was the difference

between the above two figures: $11,013,747,698.00.

FURTHER AFFIANT SAYETH NOT.

/s/ A. H. Blake

A. H. BLAKE

Tax Assessor of Dade County

Sworn to and subscribed before

me on this 29 day of May, 1973.

/s/ Hazel Lee Pearsall

NOTARY PUBLIC

State of Florida at Large

My commission expires: Feb. 8, 1976

{CERTIFICATE OF SERVICE OMITTED]

2 FRET I IN MES TINIE ST eS