Gulf Marine Repair Corporation v. Bob Henriquez, as Property Appraiser
CourtDistrict Court of Appeal of Florida
Date FiledJuly 7, 2023
Docket2D2020-2613
StatusPublished
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Full Opinion
DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
GULF MARINE REPAIR CORPORATION,
Appellant,
v.
BOB HENRIQUEZ, as Hillsborough County Property Appraiser; TAMPA
PORT AUTHORITY; DOUG BELDEN, as Hillsborough County Tax
Collector; and JIM ZINGALE, as Executive Director of the State of Florida
Department of Revenue,
Appellees.
No. 2D20-2613
July 7, 2023
Appeal from the Circuit Court for Hillsborough County; Martha J. Cook,
Judge.
Marie A. Borland and Robert E. V. Kelley, Jr., of Hill, Ward & Henderson,
P.A., Tampa, and Chris W. Altenbernd of Banker Lopez Gassler P.A.,
Tampa, for Appellant.
William D. Shepherd of Hillsborough County Property Appraiser's Office,
Tampa, for Appellee Bob Henriquez.
Ashley Moody, Attorney General, and Timothy E. Dennis, Assistant
Attorney General, Tallahassee, for Appellee Jim Zingale.
No appearance for remaining Appellees.
NORTHCUTT, Judge.
In this multifaceted litigation, Gulf Marine Repair Corporation
appeals a judgment determining that property it leases from the Tampa
Port Authority is not exempt from ad valorem taxes. The Port Authority
was also a party in the proceedings below, and it filed a separate appeal
from the same judgment. See Tampa Port Auth. v. Henriquez, No. 2D20-
2605 (Fla. 2d DCA July 7, 2023). Both appellants asked us to refrain
from consolidating the appeals, seeking instead to have them merely
considered together (that is, for the cases to "travel together"). We
granted the request, and today we announce in each case a separate
decision affirming the judgment.1
I. Background
The Port Authority is a government body that operates a deepwater
port in Tampa. See ch. 95-488, §§ 4, 7, Laws of Fla. It owns the
property at issue, comprising contiguous parcels on which Gulf Marine, a
for-profit corporation, conducts a commercial shipyard business. Gulf
Marine's lease obligates it to pay all ad valorem taxes on the property.
The property had been taxed for many years when, in February 2014,
Gulf Marine filed applications with the property appraiser to exempt the
parcels from ad valorem taxes. It claimed entitlement to the exemptions
1 Gulf Marine is the lone appellant in the instant appeal, and
therefore the Port Authority is nominally an appellee and is designated as
such in the style of the case. See Fla. R. App. P. 9.020(g)(2) (defining
"appellee" as every party in the lower court proceeding other than an
appellant); Millar Elevator Serv. Co. v. McGowan, 804 So. 2d 1271, 1273
(Fla. 2d DCA 2002) (observing that even a party aligned with the
appellant in the lower court becomes an appellee on appeal under the
rule). At the same time, Gulf Marine is a nominal appellee in the Port
Authority's appeal, case no. 2D20-2605. In neither appeal did the
parties realign themselves pursuant to Florida Rule of Appellate
Procedure 9.360(a).
2
on the ground that its use of the parcels was for a governmental
purpose.2
After inspecting the premises, the property appraiser issued written
notices denying the exemption applications because the properties were
"being used for proprietary purposes." Gulf Marine filed a timely petition
to Hillsborough County's Value Adjustment Board (VAB) for relief
pursuant to section 194.011, Florida Statutes (2014).3 The VAB's special
magistrate conducted an evidentiary hearing on the petition in December
2014. Beforehand, the VAB clerk contacted the Port Authority to request
its participation. The Port Authority's vice president for legal affairs
2 Gulf Marine's applications seemingly contravened section
196.011(1)(a), Florida Statutes (2013), which specifies that the person or
organization "who . . . has the legal title" to the property must file the
exemption application with the property appraiser. See Mastroianni v.
Mem'l Med. Ctr. of Jacksonville, Inc., 606 So. 2d 759, 761-62 (Fla. 1st
DCA 1992) (citing statute, holding that only the legal owner of the
subject property, and not the nonprofit hospital to which the property
was leased, was authorized to apply for an ad valorem tax exemption and
had standing to object to its denial). The parties have not addressed this
deviation.
3 Again, the property appraiser has not challenged Gulf Marine's
standing to file the VAB petition. In 2016, the legislature amended
section 194.011(3) to specify that "[a] petition to the value adjustment
board must be signed by the taxpayer or be accompanied at the time of
filing by the taxpayer's written authorization or power of attorney." Ch.
2016-128, § 8, Laws of Fla. (emphasis added). The statute did not
contain that explicit direction when Gulf Marine filed its VAB petition in
July 2014, but it clearly contemplated that a petitioner before that body
would be a taxpayer. See § 194.011(3), Florida Statutes (2014) (directing
the Department of Revenue to provide a form for petitioning the VAB
which must be accepted by the property appraiser "if the taxpayer
chooses to use it"), (3)(c) ("The petition shall state the approximate time
3
briefly appeared at the hearing to advise that the Port Authority approved
of Gulf Marine proceeding on its behalf.
In March 2015, the magistrate recommended denying Gulf Marine's
petition. But in April 2015, the VAB granted the petition and awarded
tax exemptions to the subject parcels. The property appraiser contested
that decision by filing a de novo circuit court action in accordance with
section 194.036 and naming Gulf Marine as the defendant.4
The circuit court later permitted the property appraiser to amend
his complaint to add the Port Authority as a defendant, and it denied the
Port Authority's motion to dismiss on the ground that it had not been
joined as a party to the VAB case during the statutory period for filing it.
Gulf Marine, as well, unsuccessfully moved for judgment on the
anticipated by the taxpayer to present and argue his or her petition
before the board."); see also Conage v. United States, 346 So. 3d 594, 598
(Fla. 2022) (holding that when interpreting a statute, a court "must
'exhaust all the textual and structural clues' that bear on the meaning of
a disputed text," quoting Alachua County v. Watson, 333 So. 3d 162, 169
(Fla. 2022)). Throughout these proceedings, Gulf Marine has stressed
that the Port Authority is the taxpayer, defined in section 192.001(13),
Florida Statutes (2014), as "the person or other legal entity in whose
name property is assessed." But Gulf Marine's VAB petitions named
itself, not the Port Authority, as the supposed taxpayer. A Gulf Marine
vice president signed each petition and certified under penalty of perjury
that he was "the owner of the property described in the petition or the
authorized agent of the owner for purposes of filing this petition."
4 The statute characterizes a property appraiser's circuit court
challenge to a value adjustment board decision as an "appeal."
§ 194.036(1), Fla. Stat. (2014). But the Florida Supreme Court has
clarified that, in fact, it is an original action. Crossings at Fleming Island
Cmty. Dev. Dist. v. Echeverri, 991 So. 2d 793, 801 n.6 (Fla. 2008).
4
pleadings on that ground, arguing that the Port Authority was an
indispensable party that had not been timely joined.
While the suit regarding the 2014 exemptions was pending, Gulf
Marine filed additional exemption applications for each tax year from
2015 through 2019. As before, the property appraiser denied the
applications. Following each denial, Gulf Marine filed suit against the
property appraiser pursuant to section 194.171, asserting theories why
each exemption disapproval was improper and should be overturned.
The circuit court eventually consolidated the actions, and ultimately it
awarded a summary judgment to the property appraiser as to them all.
II. The Tax Exemption Issue
The central issue posed in Gulf Marine's appeal is whether two
laws, sections 196.012(6) and 196.199(2)(a), Florida Statutes (2014),
together exempt the shipyard property from taxation. As will be seen,
the Florida Supreme Court has long interpreted those statutes narrowly,
beginning with Williams v. Jones, 326 So. 2d 425 (Fla. 1975). In that
pivotal decision, the Williams court established the "governmental-
governmental" use test—the keystone principle that determines whether
a particular use of privately leased government property exempts it from
taxes. 326 So. 2d at 433. Employing that test, the court below
concluded that Gulf Marine's use of the property as a for-profit shipyard
does not serve a governmental-governmental function and that therefore
the property is not tax exempt. We agree.
When applying property tax exemption statutes such as the two
involved here, courts must abide by several important precepts. These
include the Florida constitutional requirement that, with few exceptions,
all property in the state must be taxed. See art. VII, Fla. Const. The
legislature's authority to exempt property from taxation is tightly
5
fettered; lawmakers may only enact exemptions that are authorized in
the Constitution. Art. VII, §§ 3, 4, Fla. Const.; Sebring Airport Auth. v.
McIntyre (Sebring IV), 783 So. 2d 238, 247 (Fla. 2001); Archer v. Marshall,
355 So. 2d 781, 783 (Fla. 1978) (citing Presbyterian Homes of the Synod
of Fla. v. Wood, 297 So. 2d 556 (Fla. 1974)).
Consistent with that important constitutional limitation, statutory
tax exemptions can only be created expressly, not by inference. Cap.
City Country Club, Inc. v. Tucker, 613 So. 2d 448, 452 (Fla. 1993); Volusia
County v. Daytona Beach Racing & Recreational Facilities Dist., 341
So. 2d 498, 502 (Fla. 1976). As such, courts must strictly construe tax
exemption laws against the taxpayer. Cap. City Country Club, 613 So. 2d
at 452; Volusia County, 341 So. 2d at 502. Further, the taxpayer has the
burden to clearly prove its entitlement to a property tax exemption.
Volusia County, 341 So. 2d at 502.
Finally, as with all statutes, courts must interpret a tax exemption
law in a manner that preserves its constitutionality when possible. Cap.
City Country Club, 341 So. 2d at 452; Fla. Dep't of Revenue v. City of
Gainesville, 918 So. 2d 250, 256 (Fla. 2005); Hillsborough Cnty. Aviation
Auth. v. Walden, 210 So. 2d 193, 195 (Fla. 1968).
Sections 196.012(6) and 196.199(2)(a) were created as part of
comprehensive tax-reform legislation in 1971. Ch. 71-133, §§ 1, 11,
Laws of Fla. The 2014 version of section 196.199(2)(a), in force when
Gulf Marine applied for the exemptions at issue here, is materially
unchanged from the original enactment. It provides that property owned
by a government entity but used by a nongovernmental lessee is exempt
6
from taxation "only when the lessee serves or performs a governmental,
municipal, or public purpose or function, as defined in s. 196.012(6)."5
The referenced definition in section 196.012(6) has been amended
in the years since its inception in 1971. Importantly, however, the
legislature has carried forward the definition's initial sentence with no
material alteration. It reads:
Governmental, municipal, or public purpose or function
shall be deemed to be served or performed when the lessee
under any leasehold interest created in property of the United
States, the state or any of its political subdivisions, or any
municipality, agency, special district, authority, or other
public body corporate of the state is demonstrated to perform
a function or serve a governmental purpose which could
properly be performed or served by an appropriate
governmental unit or which is demonstrated to perform a
5 In 1971 section 196.199(2)(a) read:
(2) Property owned by the following governmental units but
used by nongovernmental lessees shall only be exempt from
taxation under the following conditions:
(a) Leasehold interests in property of the United States, of the
state or any of its several political subdivisions, or of
municipalities, agencies, authorities, and other public bodies
corporate of the state shall be exempt from ad valorem
taxation only when the lessee serves or performs a
governmental, municipal, or public purpose or function, as
defined in § 196.012(5). In all such cases, all other interests
in the leased property shall also be exempt from ad valorem
taxation.
ch. 71-133 § 11, Laws of Fla. The cited definitional statute was
renumbered as section 196.012(6) in 1988, see ch. 88-102 § 1, Laws of
Fla., and the citation to it in section 196.199(2)(a) was adjusted
accordingly in a 1991 reviser's bill, see ch. 91-45 § 47, Laws of Fla.
7
function or serve a purpose which would otherwise be a valid
subject for the allocation of public funds.
§ 196.012(6).
When the Williams court considered this law in 1975, the statute
consisted entirely of just that sentence and two others.6 Construing it
along with section 196.199(2)(a), the court was mindful of the
constitutional mandate that all property in the state must be taxed.
Subject to provisos not relevant here, article VII, section 4 of the
Constitution directs that "[b]y general law regulations shall be prescribed
which shall secure a just valuation of all property for ad valorem
taxation." The Williams court observed that this passage in the
6 In 1971 section 196.012(5), read in its entirety:
Governmental, municipal, or public purpose or function
shall be deemed to be served or performed when the lessee
under any leasehold interest created in property of the United
States, the State of Florida or any of its political subdivisions,
or any municipality, agency, authority or other public body
corporate of the state is demonstrated to perform a function
or serve a governmental purpose which could properly be
performed or served by an appropriate governmental unit, or
which is demonstrated to perform a function or serve a
purpose which would otherwise be a valid subject for the
allocation of public funds. The term "governmental purpose"
shall include a direct use of property on federal lands in
connection with the federal government's space exploration
program. Real property and tangible personal property owned
by the federal government and used for defense and space
exploration purposes or which is put to a use in support
thereof shall be deemed to perform an essential national
governmental purpose and shall be exempt.
Ch. 71-133, § 1, Laws of Fla.
8
Constitution "was clearly intended to be a check upon the Legislature so
as to prohibit it from classifying property for ad valorem taxation in such
a manner as to result in a valuation of any class of property at Less than
just value." 326 So. 2d at 430. In accordance with that prohibition and
with the attendant principle that tax exemption laws must be strictly
construed against exemption claimants, the court concluded that
[t]he exemptions contemplated under Sections 196.012(5) and
196.199(2)(a), Florida Statutes, relate to "governmental-
governmental" functions as opposed to "governmental-
proprietary" functions. With the exemption being so
interpreted all property used by private persons and
commercial enterprises is subjected to taxation either Directly
or Indirectly through taxation on the leasehold.
Id. at 433. "Thus," the court continued, "all privately used property
bears a tax burden in some manner and this is what the Constitution
mandates." Id.
As one writer observed, Williams "marked a dramatic turning point
in extending ad valorem tax exemptions to governmentally owned
property that is being used by nongovernmental persons or entities."
David M. Hudson, Governmental Immunity and Taxation in Florida, 9 U.
Fla. J.L. & Pub. Pol'y 221, 244 (1998).
No longer is it sufficient simply to find that the governmental
entity is serving some broad "public purpose" and that the
nongovernmental lessee is in some way furthering that public
purpose in order for the property to be exempt. Now, the use
to which the property is being put by the nongovernmental
lessee must be scrutinized, and it will be exempt only if it is
being used for a "governmental-governmental" purpose or
function; a "governmental-proprietary" purpose or function
will not suffice.
Id. (footnote omitted).
Further,
9
[t]raditionally, a governmental purpose or function "has to do
with the administration of some phase of government, that is
to say, dispensing or exercising some element of sovereignty.
In contrast, a proprietary purpose or function encompasses
that broad range of activities in which a governmental entity
may engage which "redounds to the public or individual
advantage and welfare of the [governmental entity] or its
people."
Id. (footnotes omitted) (quoting Daly v. Stokell, 63 So. 2d 644, 645 (Fla.
1953)).
Ensuing decisions confirmed this construction and its distinction
between governmental-governmental functions and governmental-
proprietary ones. Governmental-governmental uses are limited to the
administration of some phase of government or some aspect of
sovereignty; they do not include governmental-proprietary activities,
defined as "when a nongovernmental lessee utilizes governmental
property for-proprietary and for-profit aims." Sebring Airport Auth. v.
McIntyre (Sebring II), 642 So. 2d 1072, 1074 (Fla. 1994). "Proprietary
functions promote the comfort, convenience, safety and happiness of
citizens, whereas government functions concern the administration of
some phase of government." Id. at 1074 n.1 (citing Black's Law
Dictionary 1219 (6th ed. 1990)).
The property involved in this case fails the governmental-
governmental use test because Gulf Marine's shipyard business has
nothing to do with the administration of the Port Authority. The
summary judgment record reflected, instead, that it is a commercial
enterprise that sells inspection, repair, and maintenance services to
ships that use the port. In its order, the VAB described this amenity as
"integral" to the port. But, as Williams held, that is not the proper test.
And for that matter, the VAB pointed to no law, regulation, or other
factor that requires a port to offer shipyard services. To the contrary, the
10
record disclosed that only two of Florida's fourteen deepwater ports have
shipyards.
Rather, the presence of Gulf Marine's shipyard at the port is of
strictly financial importance, in that it offers the port a competitive
advantage. Gulf Marine acknowledged this in its briefing when it
observed that, absent a shipyard, "ships that might otherwise pass
through the Port would simply take their business elsewhere." But such
does not change the governmental-proprietary nature of this use, as
underscored by the Florida Supreme Court:
We certainly understand that there is enormous competition
to secure professional athletic teams and other forms of
entertainment and economic development which benefit
Florida citizens. We also recognize the tremendous economic
forces and implications that become involved in this type of
issue and the good faith legislative attempts to balance these
concerns. However, as long as the people of Florida maintain
the constitution in the form we are required to apply today,
neither we nor the Legislature may expand the permissible
exemptions based on this type of argument.
Sebring IV, 783 So. 2d at 253.7
7 See also Page v. City of Fernandina Beach, 714 So. 2d 1070,
1075-77 (Fla. 1998) (airport property leased to others for commercial
activities was not used for governmental-governmental purposes, and so
was not tax-exempt; operating marina was not aspect of sovereignty and
did not warrant tax exemption for marina leased to nongovernmental
operator seeking profits); Canaveral Port Auth. v. Dep't of Revenue, 690
So. 2d 1226, 1229-30 (Fla. 1996) (rejected port authority's claim to tax
exemption for property used by private lessees for warehouses, gas
stations, deli restaurants, fish markets, charter boat sites, and docks
because uses were nongovernmental); Sebring II, 642 So. 2d at 1073
(disagreed with assertion that government property leased to private
party was exempt from ad valorem taxes if lessee's use served public
purpose regardless of for-profit motive); Cap. City Country Club, 613 So.
2d at 452 (city-owned golf course not exempt from taxation when leased
to private operator); Volusia County, 341 So. 2d at 498 (operating
11
Nevertheless, Gulf Marine contends that because the Port
Authority's enabling act, chapter 95-488, sections (3), 7(c), 7(k), Laws of
Florida, permits it to maintain a shipyard, Gulf Marine's operation of a
shipyard ipso facto exempts the property from taxation under section
196.012(6) because that is a function that "could properly be performed
or served by an appropriate governmental unit." But the Florida
Supreme Court rejected this very argument in Walden, 375 So. 2d at
285-87. Applying the governmental-governmental use test, the Walden
court held that public airport premises that were leased to private
businesses for a bonded warehouse, concessions, and other for-profit
commercial activities were not exempt from taxation even though those
functions legally could have been performed by the aviation authority.
Id. at 287.
The decisions discussed above, and thus our conclusion in this
case, are grounded in the introductory sentence of section 196.012(6) as
enacted in 1971 and construed by the Williams court in 1975. While the
legislature has added language to the subsection over the years, that
automobile racetrack for profit on property leased from legislatively
created racing and recreational facilities district "not even arguably the
performance of a 'governmental-governmental' function"); Turner v.
Concorde Props., 823 So. 2d 165, 167 (Fla. 2d DCA 2002) (public golf
course situated on publicly owned property but operated by private for-
profit partnership was proprietary, not tax-exempt governmental use);
Mikos v. City of Sarasota, 636 So. 2d 83, 85 (Fla. 2d DCA 1994) (marina
operated by for-profit lessee on city-owned property was proprietary use
and was not exempt); St. John's Assocs. v. Mallard, 366 So. 2d 34, 37-38
(Fla. 1st DCA 1978), approved by Walden v. Hillsborough Cnty. Aviation
Auth., 375 So. 2d 283, 287 (Fla. 1979) (although activity was expressly
permitted by port authority's enabling act, use of authority's property by
for-profit lessee for storing cars before shipment by importer did not
serve governmental purpose and was not tax exempt).
12
initial sentence and the courts' construction of it have remained
unaltered since its creation.8
For this reason, the legislature's addition of language regarding
maritime functions, appended to section 196.012(6) in 1997 and
included in the 2014 version of the statute, does not change the result of
our governmental-governmental use analysis. See ch. 97-255, § 25;
§ 196.012(6). In pertinent part, that addition states:
Any activity undertaken by a lessee which is permitted under
the terms of its lease of real property [. . .] which [is] located
in a deepwater port identified in s. 403.021(9)(b) and owned
by one of the foregoing governmental units, subject to a
leasehold or other possessory interest of a nongovernmental
lessee that is deemed to perform [a] . . . port purpose or
operation shall be deemed an activity that serves a
governmental, municipal, or public purpose.
§ 196.012(6). Nothing in that language alters the governmental-
governmental use test attributed by Williams to the enduring prefatory
sentence of section 196.012(6). Indeed, the supreme court has made
clear that the legislature may not confer tax exemptions on
8 Beginning in the 1990s, the legislature made amendments to the
definition contained in subsection (6), always leaving the first sentence
intact while adding verbiage related to sundry types of activities. By the
time Gulf Marine applied for tax exemptions in 2014, section 196.012(6)
had morphed into a single Gordian paragraph of almost 750 words.
Among the added topics were airport and space exploration functions,
ch. 93-233, § 1, Laws of Fla.; use for a "convention center, visitor center,
sports facility with permanent seating, concert hall, arena, stadium,
park, or beach," ch. 94-353, § 59, Laws of Fla. (later invalidated in
Sebring IV); use of federally donated land for historical preservation,
park, or recreational purposes, ch. 94-353, § 59, Laws of Fla.; and
telecommunications activities, ch. 97-197, § 3, Laws of Fla.
13
governmental-proprietary activities simply by adding them to the
definition of government purpose in section 196.012(6):
When viewed through the lens of the constitution, this
amendment's approach [exempting sports facilities with
permanent seating] cannot meet with success because mere
labeling does not and cannot effectuate a transformation of
constitutional acceptance. "[L]egislatively deeming a
governmental-proprietary purpose to be a 'governmental-
governmental' purpose does not change its true nature and
does not result in the constitutional awarding of a tax
exemption where, absent the legislation, there clearly could
be no exemption."
Sebring IV, 783 So. 2d at 252 (quoting Hudson, 9 U. Fla. J.L. & Pub.
Pol'y at 250).9
Still, as previously mentioned, we must interpret the "port purpose"
language in section 196.012(6) in a manner that preserves its validity if
possible. To that end, it is significant that the legislature is presumed to
have adopted prior judicial constructions of a statute unless a contrary
intention is expressed. Fla. Dep't of Revenue v. City of Gainesville, 918
So. 2d 250, 254 (Fla. 2005); Fla. Dep't of Child. & Fams. v. F.L., 880 So.
2d 602, 609 (Fla. 2004). Here, the legislature has preserved undisturbed
the initial sentence of section 196.012(6)—the provision on which a
multitude of judicial decisions rests—despite making assorted
amendments to the balance of the paragraph. In fact, the legislature has
qualified its additions to the subsection with the phrase "[f]or purposes of
9 Professor Hudson likened such efforts to "attempt[ing] to convert a
donkey into a horse by legislatively labeling the donkey a 'horse.' " David
M. Hudson, Governmental Immunity & Tax'n in Fla., 9 U. Fla. J.L. &
Pub. Pol'y 221, 250 (1998).
14
the preceding sentence," confirming that the introductory sentence, the
meaning of which is rooted in the Constitution, establishes the
parameters within which the remainder of the definition operates.
§ 196.012.
Therefore, "any activity" by a lessee "that is deemed to perform [a]
. . . port purpose or operation" still must satisfy the initial sentence of
section 196.012(6) and the constitutional governmental-governmental
use test arising from it, i.e., it must relate to the administration of
government as opposed to the commercial endeavor of a private lessee.
See id.
Further support for this constitutional construction of the law
arises from the fact that when inserting the port-purpose passage into
section 196.012(6), the legislature chose not to include language
expressly granting a tax exemption for proprietary activities undertaken
for profit.10 The legislature cannot create tax exemptions by inference,
and thus we cannot read into the statute an exemption for private for-
profit uses. See Cap. City Country Club, 613 So. 2d at 452 (statute did
not specifically exempt class of property from taxation, but did so only by
inference; therefore, to preserve statute's constitutionality court would
not interpret statute as exempting such property from taxes).
Simply put, Gulf Marine's use of its leased property for its own
profit does not serve a governmental-governmental function. As such,
the property is not tax-exempt.
10 The property appraiser posits that "[w]ere the Tampa Port
Authority to privatize the administration and operation of the port, that
lessee would likely receive an exemption." Of course, that is not the
situation in this case.
15
III. The Property Appraiser's Standing
Gulf Marine maintains that the property appraiser lacked standing
to challenge the VAB decision because the "true intent" of his suit was to
"covertly" and improperly attempt to invalidate section 196.012(6). This
argument distorts the property appraiser's position.
To be sure, state officers such as property appraisers have no
standing in their official capacities to challenge the constitutionality of
statutes. See Crossings at Fleming Island Cmty. Dev. Dist. v. Echeverri,
991 So. 2d 793, 803 (Fla. 2008); State ex rel. Atl. Coast Line R. Co. v.
State Bd. of Equalizers, 94 So. 681, 684 (Fla. 1922). But that is not what
occurred here. Rather, the property appraiser proceeded under a
longstanding judicial interpretation of the statute that comports with the
constitution. Doing so did not equate to an attack on the statute's
validity.
Gulf Marine's reliance on Turner v. Hillsborough County Aviation
Authority, 739 So. 2d 175 (Fla. 2d DCA 1999), in this regard is
unavailing. That case involved an exemption application for land owned
by the Hillsborough County Aviation Authority and leased to the Tampa
Sports Authority, which in turn licensed it for use as a major league
baseball facility. Id. at 176. The Aviation Authority applied for a
property tax exemption under language in section 196.012(6), Florida
Statutes (1997), that defined "governmental purpose" to include the use
of government property for certain sports facilities. Id. The property
appraiser, Turner, denied the application because he "was of the opinion
that the sports facility exemption was unconstitutional." Id. at 178.
Nevertheless, the VAB granted the exemption pursuant to the statute.
Id. at 176. When Turner sued to overturn the VAB's decision, the circuit
court dismissed his action. Id. at 177. On appeal, this court affirmed
16
the dismissal because state officers lack standing to challenge the
validity of statutes. Id. at 179. The court rejected the property
appraiser's argument that his initial rejection of the exemption request
should be upheld because it was consistent with the constitution and
that his court challenge was to the VAB's decision to apply the
unconstitutional statute rather than to the validity of the statute itself.
Id. at 177. The court wrote that it "fail[ed] to see the distinction." Id.
Turner was without authority to change the legislature's
definition of governmental purpose. Therefore, Turner's
refusal to apply the statutory exemption and his subsequent
filing of a complaint alleging that the VAB violated the
constitution by granting the exemption are both acts that
challenge the constitutionality of the statute. . . . Thus, we
conclude that Turner initiated a challenge to the
constitutionality of the statute first by refusing to apply it,
and second by seeking to have its application by the VAB
declared a violation of the constitution.
Id. at 179.
In contrast, here the property appraiser did not deny Gulf Marine's
applications on the ground that the statute it relied on was
unconstitutional. Neither did he contend that the VAB erred by applying
an invalid statute. Rather, he determined that Gulf Marine's use did not
entitle the property to an exemption under the tax statutes as they have
been construed by the courts. The property appraiser's circuit court suit
alleged that the VAB's decision to the contrary contravened the
constitution "and Florida Statute 196.199, as interpreted by the Florida
courts." See § 194.036(1)(a) (when appealing VAB decision, property
appraiser must affirmatively assert that there is a specific constitutional
or statutory violation in the decision).
The property appraiser's assertion that he, the VAB, and the circuit
court were bound by prior judicial interpretations that harmonized these
17
statutes with the constitution is fully consistent with long-standing
Florida law. See, e.g., Williams, 326 So. 2d at 433 ("With the [statutory]
exemption being so interpreted all property used by private persons and
commercial enterprises is subjected to taxation . . . . Thus all privately
used property bears a tax burden in some manner and this is what the
Constitution mandates." (emphasis added)). Contrary to Gulf Marine's
mischaracterization, construing and applying statutes in this manner
preserves their validity. See Cap. City Country Club, 613 So. 2d at 452
("in order to sustain [statute's] constitutionality," court would not
interpret statute as exempting subject property from ad valorem taxes).
IV. Procedural Issues
We also address several procedural issues raised by Gulf Marine,
none of which support reversal.11
A. The Pleadings
Gulf Marine contends that the property appraiser's pleadings failed
to invoke a necessary statutory basis for his challenge to the VAB
decision and that therefore the circuit court erred by entertaining it. As
we have done in the Port Authority's appeal, we reject this argument.
The VAB appeal statute authorizes the property appraiser to
contest a VAB decision in court if one or more of three conditions are
met. § 194.036(1)(a)-(c), Fla. Stat. (2015). The condition relevant here,
contained in subsection (1)(a), requires the property appraiser to
determine and assert that there is a "specific constitutional or statutory
11 We do not take up Gulf Marine's arguments that the property
appraiser failed to follow certain procedures mandated in section
196.199. Gulf Marine acknowledged in the circuit court that those
issues would be moot if the property was not exempt from taxes in 2014,
as the circuit court and we have concluded.
18
violation" in the VAB's decision. Manifestly, the property appraiser's
amended complaint did precisely that: "The Value Adjustment Board's
decision violates Article VII, section 3(a) of the Florida Constitution, Article
VII, section 4 of the Florida Constitution and Florida Statute 196.199 as
interpreted by the Florida courts." (Emphasis added.)
Gulf Marine characterizes the complaint's allegations as merely
"conclusory." This assertion mistakenly conflates the statutory directive
with pleading requirements under the rules of civil procedure. But we
have no difficulty concluding that the property appraiser met the latter
standard, as well.
In addition to the foregoing paragraph, the complaint alleged that
the lessee was a for-profit corporation "in the Dry dock/Repair business"
which advertised a variety of related services on its website. Neither the
lessee's business nor the offered services were exempt uses of the
property. Thus, according to the amended complaint, the lessee's use of
the property did not entitle it to an exemption under section 196.199. In
sum, the property appraiser alleged that because the lessee was a for-
profit corporation that did not perform an exempt activity on the subject
property, the VAB improperly granted the exemption. Clearly, those
allegations constituted a "short and plain statement of ultimate facts
showing that the pleader [was] entitled to relief," as required by Florida
Rule of Civil Procedure 1.110(b)(2). Gulf Marine's assertion that the
property appraiser's pleadings failed to properly plead his statutory right
to challenge the VAB decision is meritless.
B. The Late Joinder of the Port Authority as a Party Defendant
Gulf Marine contends that it should have prevailed in the property
appraiser's VAB circuit court appeal because the Port Authority—the
"taxpayer" as defined in section 192.001(13), Florida Statutes (2014)—
19
was an indispensable party but was not added as a defendant until the
statutory period for filing the action had lapsed. But under the "relation-
back" principle contained in the rules of procedure, the Port Authority's
late inclusion in the case was deemed timely because it related back to
the timely initial complaint.
Florida Rule of Civil Procedure 1.190 governs amendments of
pleadings. Subsection (c) states that "[w]hen the claim or defense
asserted in the amended pleading arose out of the conduct, transaction,
or occurrence set forth or attempted to be set forth in the original
pleading, the amendment shall relate back to the date of the original
pleading." (Emphasis added.) Generally, "the relation-back doctrine [is]
to be liberally construed and applied." Smith v. Bruster, 151 So. 3d 511,
515 (Fla. 1st DCA 2014) (applying the relation-back rule to authorize the
addition of a new party where the interests of the original and new
parties overlapped).
The instant proceeding arose under section 194.036, which
authorized the property appraiser's challenge to the VAB decision. Per
section 193.122(4), an action under section 194.036 must be filed within
thirty days. Neither statute prohibits application of the relation-back
rule. This distinguishes the case at hand from Wilkinson v. Reese, 540
So. 2d 141 (Fla. 2d DCA 1989), on which Gulf Marine relies. There,
taxpayers challenged an assessment by suing under a wholly different
statute, section 194.171, Florida Statutes (1987), which requires such
suits to be filed within sixty days after the assessment is certified for
collection or after a decision regarding the assessment by the adjustment
board. Wilkinson, 540 So. 2d at 142.
Unlike the statutes governing this case, section 194.171 contains
an explicit jurisdictional nonclaim provision, in subsection (6). It requires
20
the taxpayer to meet specified presuit conditions, to file suit by a sixty-
day deadline, and to continue complying with the preconditions after
filing suit, failing which "[n]o court shall have jurisdiction." See
§ 194.171(6); see also Markham v. Neptune Hollywood Beach Club, 527
So. 2d 814, 816 (Fla. 1988) (confirming that the addition of subsection
(6) established section 194.171 as a jurisdictional statute of nonclaim
rather than a statute of limitations). The Wilkinson taxpayers filed suit
within the sixty-day period, but they had not satisfied the statutory
presuit requirement to make a good faith payment of the tax they
believed they owed. 540 So. 2d at 142. They attempted to cure the
defect by making the payment after the sixty-day deadline. Id. This
court held that the late payment could not relate back. Id. at 143. "[A]t
the time the payment was made," the court wrote, " 'the a