Constitutional Amendments: What You Need to Know

From the October 1, 2008 Issue of Florida Trend Magazine

Constitutional Amendments: What You Need to Know

November’s ballot includes six proposed constitutional amendments, from a ban on gay marriage to a tax break for working waterfronts. Here’s a guide.

By Amy Keller – 10/1/2008

Quick link:

>Amendment 1: Repeal of Alien Land Law
>Amendment 2: Gay Marriage Ban
>Amendment 3: Hurricane and Energy Tax Break
>Amendment 4: Conservation Land Tax Break
>Amendment 6: Working Waterfront Tax Break
>Amendment 8: New Sales Tax for Community College Districts

The 2008 presidential race isn’t the only high-stakes political battle playing out in Florida this fall. On Nov. 4, voters will face a lineup of six ballot initiatives that cover everything from gay marriage to creating tax breaks for marinas and conservation lands. Each measure will require 60% approval by voters to pass.

Only one of the measures originated in the state Legislature: Amendment 1, a proposal to delete an obsolete provision in the state Constitution that allows the Legislature to prohibit property ownership by “aliens ineligible for citizenship.” Amendment 2, a proposed constitutional amendment banning same-sex marriage, is the only proposed amendment that came from a citizens’ initiative. Florida4Marriage.org, the group that sponsored the proposal, collected 649,346 signatures – the law requires at least 611,009 – to get it on the ballot.

The remaining proposals were crafted by the constitutionally mandated Taxation and Budget Reform Commission, which meets once every 20 years to examine the state’s tax and spending policies and recommend changes. In September, the Florida Supreme Court tossed out three of the panel’s proposals – a controversial “tax swap” amendment and two other measures dealing with school vouchers.

Millions of dollars – much of it from donors outside the state – are already flowing to campaigns for and against the most hotly contested initiative, Amendment 2, the so-called “Marriage Protection Amendment.” Florida4Marriage.org, the Orlando-based group that spearheaded the anti-gay marriage amendment, has raised more than half a million dollars. The Republican Party of Florida gave $300,000 to the group while Jeb Bush was in office, but Gov. Charlie Crist said the party “probably” shouldn’t continue to spend money on the effort, and he isn’t planning to campaign for its passage.

Florida Red and Blue, the group that’s fighting the Florida marriage protection amendment, had raised more than $2 million as of early August and says it hasn’t “ruled out any medium” for getting its point across.

While millions of dollars have been spent on Florida’s 2008 initiatives battles, at least 50 other initiatives aimed at everything from billboards to alimony obligations failed to make it to the ballot.

Most were unable to raise the funds needed to collect the 611,009 valid signatures that Florida requires for a measure to qualify for the ballot – but some came close. An initiative by Florida Hometown Democracy, which would change the Constitution to require public approval of local comprehensive plan amendments, came up about 65,000 signatures short. The group could be in a good position to get its proposal on the 2010 ballot, since its petitions are valid for four years. However, a countermeasure sponsored by Floridians for Smarter Growth, a coalition of business interests that oppose the Florida Hometown Democracy measure, is close behind with 443,511 signatures.

Amendment 1

Repeal of Alien Land Law

Sponsor: State Sen. Steve Geller (D) of Hallandale Beach and other lawmakers

Title: Relating to Property Rights/Ineligible Aliens

What it does: Deletes an outdated provision of the state Constitution that authorizes the Legislature to regulate the property rights of “ineligible aliens.”

Background: In 1926, Florida voters amended the state Constitution to ban Asian immigrants from owning and inheriting property. Florida’s “alien land law” was typical of more than a dozen such state laws passed in the U.S. between 1862 and 1965. While the measure was intended to prevent Japanese farmers from leasing or owning property, it does not appear that the constitutional provision was ever enforced because it was never codified into the Florida statutes. Most states subsequently did away with such provisions, but a group of University of Cincinnati College of Law students discovered in 2001 that Florida, New Mexico and Wyoming still had anti-Asian land laws on the books. Wyoming and New Mexico repealed their alien land laws in 2001 and 2006, leaving Florida as the only state with an alien land law still on the books.

Proponents: Eighty-three state representatives and 39 state senators supported Geller’s push to delete the “bizarre” and “racist” wording from the state Constitution. Other supporters include the Organization of Chinese Americans, other minority rights advocates and immigrants rights advocates, and Florida TaxWatch.

Opponents: In a May 2007 vote, 31 members of the Florida House of Representatives opposed striking down the law. Anti-immigrant sentiment appears to have at least something to do with their thinking: Rep. Mitch Needelman (R) of Melbourne told the Miami Herald that lawmakers were giving up what could be a useful immigration-fighting tool.

Financial impact: None

Amendment 2

Gay Marriage Ban

Sponsor: John Stemberger, chairman of Florida4Marriage.org (now called Yes2Marriage.org)

Title: Florida Marriage Protection Amendment

What it does: Defines marriage as the legal union of only “one man and one woman as husband and wife.” If passed, it would ban gay marriage and civil unions and could endanger publicly recognized domestic partnerships if they are deemed to be “substantially equivalent” to marriage. Miami Beach, Gainesville, West Palm Beach, Key West as well as Miami-Dade, Broward and Palm Beach counties all have domestic partner registries.

Background: While Florida law prohibits same-sex marriage and defines marriage as the legal union between one man and one woman, backers of Amendment 2 say putting it in the state Constitution is necessary to protect the state’s marriage law from a legal challenge. The initiative was spearheaded by John Stemberger, an Orlando personal injury lawyer, and funded in part by the Republican Party of Florida.

***** A Quinnipiac University poll found that Florida voters support 55% to 41% a constitutional amendment defining marriage as a legal union between a man and a woman. Republicans back the measure 76% to 21%; independents oppose it 51% to 44%; and Democrats oppose it 51% to 45%.*******

A major point of conflict is the how domestic partnerships would be affected by prohibiting unions that are the “substantial equivalent” of marriage. Stemberger’s group insists that the measure “does not invalidate the small bundle of rights granted by existing domestic partnerships in Florida.” But opponents say the wording of Amendment 2 is similar to a constitutional amendment that Michigan passed in 2004 and which the Michigan Supreme Court later ruled prohibits employers like universities and cities from extending benefits to domestic partners.

An analysis of the amendment by the Legislature’s Office of Economic and Demographic Research raises the possibility of that result in Florida, saying that terminating marriage-equivalent partnerships “could place registrants at risk of losing specified rights and benefits, such as those related to health insurance.” The amendment would not affect benefits offered or contracted in the private sector.

Proponents: Florida Baptist Convention, Florida Catholic Conference, Florida Christian Coalition, Liberty Counsel, Florida Family Action and Exodus International, Yes2Marriage.org

Opponents: Rep. Ileana Ros-Lehtinen (R), Human Rights Campaign, Florida Red and Blue Committee (sponsor of the Say No 2 campaign), Florida AFL-CIO

Financial impact: Undetermined, but probably minor

Amendment 3

Hurricane and Energy Tax Break

Sponsor: Florida Taxation and Budget Reform Commission)

Title: Changes and Improvement Not Affecting the Assessed Value of Residential Real Property

What it does: Provides homeowners with a small property tax reduction when they make storm-hardening improvements such as adding hurricane shutters and hurricane-resistant shingles, doors and windows. It would also exempt renewable energy source devices like solar water heating systems. The property tax reduction would apply to rental apartments, second homes or vacation homes as well as homesteads.

Background: Currently, the Florida Constitution requires all property, with some exceptions, to be assessed at a fair market value for the purposes of ad valorem taxation. State Sen. Gwen Margolis (D) of Miami Beach, a member of the Taxation and Budget Reform Commission, introduced the measure. Margolis, who is term-limited, is running for property appraiser in Miami-Dade County.

Proponents: Margolis, Florida Chamber of Commerce, Florida TaxWatch

Opponents: No organized opposition

Financial impact: Taxpayers would save an estimated $3.44 million in the first year the measure is implemented, according to estimates by the Legislature’s Office of Economic and Demographic Research. That would amount to an average savings of about $15 for each of the 225,000 homeowners who would likely qualify. Homeowners could realize additional savings, however, in the form of reduced insurance premiums and lower energy costs.

Amendment 4

Conservation Land Tax Break

Sponsor: Florida Taxation and Budget Reform Commission

Title: Property Tax Exemption of Perpetually Conserved Land; Classification and Assessment of Land Used for Conservation

What it does: This amendment would do two things: It would create a complete property tax exemption for conservation easements – land that a property owner agrees to maintain in its current state and not develop; second, it allows the Legislature to create a new classification of “conservation” land that would qualify for a tax reduction much in the same way the state provides “greenbelt” tax breaks to agricultural landowners.

Background: Spearheaded by environmentalists, this amendment is intended to create incentives for private landowners to leave their land undeveloped. Environmentalists argue that new conservation tools are needed to supplement programs like Florida Forever, which is running tight on funds.

Some worry how state lawmakers would implement the plan. House minority leader Dan Gelber cautions that the measure “could become a giveaway for mega-developers and have a great fiscal impact that shifts the tax burden to home-owners and active businesses” if the Legislature makes it too easy to temporarily classify property as “conservation” land. But environmentalists say lawmakers can build safeguards into the system to cut down on the potential for abuse. For instance, lawmakers might designate a minimum parcel size and allow tax assessors to go back 10 years to capture lost tax revenue if conservation land that receives a tax break is developed later.

Proponents: Florida Fish and Wildlife Conservation Commission, the Nature Conservancy, the Florida Wildlife Federation, Audubon of Florida, Trust for Public Lands and other environmental groups, the Florida Chamber of Commerce, Florida TaxWatch

Opponents: No organized opposition

Financial impact: No hard estimates of fiscal impact are available. Generally speaking, some small, rural counties where a significant amount of land is being conserved may be pinched if land is taken off the tax rolls. State and local governments will likely benefit from the fact that private landowners, not the state, will have to maintain property with conservation easements in its undeveloped condition. Once the state formally acquires a property, it also takes on the cost of maintaining it. Brian Yablonski, vice president of public affairs for St. Joe Co. and the commission member who pushed the measure, said at a hearing earlier this year that he believed the initiative had “the potential to save millions in taxpayer dollars, with the private land manager actually managing land for conservation.”

Amendment 6

Working Waterfront Tax Break

Sponsor: Florida Taxation and Budget Reform Commission

Title: Assessment of Working Waterfront Property Based Upon Current Use

What it does: Provides a tax break for marinas, boat yards, commercial fishing facilities and other “working waterfront” businesses by assessing their property according to its current use, rather than by “highest and best,” or potential, use.

Background: Rapidly escalating property values and the state’s policy of taxing commercial property at its highest and best use have put a financial strain on owners of marinas, fish houses and boatyards. In Palm Beach County, some marina owners have seen their tax bills increase by nearly 400% over the past several years, based on assessors’ judgments that the best use of waterfront property was for high-rise development rather than the marina. The tax policy has been hard on the state’s commercial fishing industry, which has been struggling to survive amid increased fuel prices and increased regulation.

Proponents: Marine Industries Association of Florida, marina owners, fish house owners, boatyard owners, Florida Chamber of Commerce, Florida TaxWatch

Opponents: No organized opposition

Financial impact: Undetermined, although a staff analysis by the Taxation and Budget Reform Commission noted that the tax break could result in reduced revenue for local governments, which may choose to increase millage rates to offset potential revenue shortfalls.

Amendment 8

New Sales Tax for Community College Districts

Sponsor: Florida Taxation and Budget Reform Commission

Title: Local Option Community College Funding

What it does: Voters in a county could choose to impose a local option sales tax to supplement community college funding. Any taxes approved by the counties would sunset after five years but could be reauthorized by the voters.

Background: While the Taxation and Budget Reform Commission focused mostly on trying to scale back taxes for Floridians, it voted almost unanimously (23 to 1) in favor of creating an optional tax for community colleges. Eduardo J. Padron, president of Miami Dade College and a key supporter of the initiative, says that the institutions that have “become the most important access point to higher education in this state” should be recognized in the Constitution. He says the measure will give citizens the opportunity to “support institutions that make a difference for the welfare and progress of their respective communities.” It’s unclear whether the rest of Florida’s community colleges are as enthusiastic about the proposal. Only nine of the Florida’s 28 community college districts serve just one county; it’s questionable whether the institution’s host county would vote to raise its taxes to support the school unless the neighboring counties vote similarly. Currently, the community college systems in at least 20 states – including California, Texas, Ohio, New York and North Carolina – receive some form of municipal or county support in addition to state funding.

Proponents: Florida Education Association, Associated Industries of Florida, Greater Miami Chamber of Commerce, United Faculty of Florida, Florida TaxWatch

*****”We have constitutional language which governs and empowers our boards of governors for the university system. We have Article IX, which spends an awful lot of time dealing with the K-12 system, but as you go through the Constitution, we haven’t yet elevated the community college system to constitutional status and created some constitutional powers for the community colleges. This is a good step in that direction.”
— Ron Meyer, Florida Education Association lawyer*****

Opponents: No organized opposition

Financial impact: Unknown