Filing # 65111778 E-Filed 12/07/2017 03:13:28 PM

IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT

IN AND FOR HILLSBOROUGH COUNTY, FLORIDA

RICHARD CORCORAN, in his official

Capacity as Speaker of the Florida House
of Representatives,
CASE NO.: 17-CA-9785
Plaintiff, DIVISION: J
v.

CITY OF TAMPA, a municipality of the

State of Florida,

Defendant.
__________________________________________/

DEFENDANT, CITY OF TAMPAS MEMORANDUM IN OPPOSITION TO AND

MOTION TO DISMISS PLAINTIFFS COMPLAINT FOR WRIT OF QUO WARRANTO

Statement of the Case and Facts

In November of 2015, owners of 13 hotel properties in the City of Tampa voluntarily

requested that the City Council levy a special assessment upon these 13 parcels, all located

within the described boundaries of a geographic area to be designated as the Downtown

Historic/Ybor Tampa Tourism Marketing District (hereafter District). The City Council

advertised and scheduled a public hearing to be held on March 16, 2017, pursuant to applicable

state law, to consider the adoption of an ordinance delineating the District, defining the services

to be provided within the District, authorizing the future levy and collection of a special

assessment upon hotel properties within the Districts boundaries in order to fund those services.

Following the public hearing, the City Council unanimously adopted Ordinance No.

2017-42 (hereafter the Ordinance) pursuant to its constitutionally and legislatively authorized

home rule powers. Within the Ordinance, the City Council made legislative findings that:

c) There are certain areas within the City where there is a need for
a proactive effort to provide services that specially and specifically
benefit tourism properties to increase occupancy.
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 d) Certain costs of additional services are needed from the City
for consistent tourism promotion efforts.

e) The lodging industry has become more competitive, and in

order to ensure that the City will remain a competitive tourism
market, the tourism properties must implement marketing
programs designed to attract overnight visitors with additional
funding to cover a new marketing and promotional budget needed
to reach additional market segments.

f) Tourism property owners, tourism property representatives,

and the Hillsborough County Hotel and Motel Association have
requested that the City adopt an ordinance creating a new funding
mechanism designed to attract overnight visitors to the City.

g) Tourism is a vital driver of the Citys economy, and is

necessary for the economic success of the City. It is the intent of
the City of Tampa to create a tourism marketing District in the
City, to fund services and improvements that encourage tourism.

24.5-1, Code of Ordinances of the City of Tampa.

No one appeared or spoke against the Ordinance either at its first reading on March 2,

2017, or at the duly advertised public hearing and second reading on March 16, 2017. As

required by the Citys Charter, the Mayor approved the Ordinance on March 21, 2017.

Following the adoption of the Ordinance, after advertising in a newspaper of general

circulation in the City of Tampa and sending direct mail notices to the affected owners, the City

held another public hearing for the purposes of estimating the cost of tourism marketing services

to be provided within the District, describing and establishing the method to allocate those costs

among the parcels to be assessed within the District, levying special assessments against certain

real property within the District boundaries, approving an assessment role of owners and their

property to which the assessments would be levied. To support the levy of the special

assessment, the owners submitted a Tourism Marketing District Assessment Methodology

Allocation Report prepared by a professional economist in accordance with 24.5-9, Code of

Ordinances (hereafter Assessment Methodology Report). The Assessment Methodology

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Report proposed a method for apportioning the service cost among the parcels of property

located within the District based upon: (a) an estimate of the revenue that would be generated by

this assessment for tourism enhancing services, (b) an estimate of the total benefit generated by

the tourism enhancing services, a demonstration of how the tourism enhancing services benefits

the properties within the District, (c) a determination of how to fairly apportion that benefit

among the properties in the District, and (d) a comparison of the results with the destination

marketing results in other markets as a verification measure.

Based upon the Assessment Methodology Report and testimony received at the public

hearing on April 6, 2017, the City Council legislatively found that:

1. The City finds that there are certain areas within the City where
there is a need for a proactive effort to provide services that
specially and specifically benefit tourism properties to increase
occupancy.

2. The lodging industry has become more competitive, and in

order to ensure that the City will remain a competitive tourism
market, the tourism properties must implement marketing
programs designed to attract overnight visitors with additional
funding to cover a new marketing and promotional budget needed
to reach additional market segments.

3. Tourism is a vital driver of the Citys economy, and is

necessary for the economic success of the City. It is the intent of
the City of Tampa to create a tourism marketing District in the
City, to fund services and improvements that encourage tourism.

4. Based on these findings, the City Council of the City of

Tampa, Florida (the "City") adopted Ordinance No. 2017-42 (the
Ordinance) establishing a process for levying and collecting a
tourism marketing non-ad valorem special assessment pursuant to
Article VIII, 2 of the Florida Constitution, and Chapter 166,
Florida Statutes, which grants the City the authority to enact an
ordinance to impose special assessments against real property
specially benefited by tourism marketing services.

5. Based on the Ordinance, the City created the

Downtown\Historic Ybor Tampa Tourism Marketing District (the

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District) and delegated to the Owners Association certain
powers, duties, and obligations in order to provide tourism
marketing services within the District.

6. The ordinance authorizes the imposition of non-ad valorem

assessments against real property which is benefited by the
districts tourism marketing services.

7. The Owners Association hired a consultant, Tourism

Economics, to prepare a tourism marketing District assessment
methodology allocation report for the District (hereafter the
Report).

8. The tourism marketing services to be provided include, but are

not limited to, internet marketing, print ads in periodicals, trade
show attendance, sales blitzes, tours, production of collateral
promotional materials, attendance at conferences, lead generation
activities, and development of a website to increase room nights, as
set forth in the Report.

9. The Report estimates the service cost at $1,360,000 per year.

10. As set forth in the Report, the proposed method of apportioning

the service cost among the parcels of property located within the
District is based upon: (a) an estimate of the revenue that would
be generated by this assessment for tourism enhancing services, (b)
an estimate of the total benefit generated by the tourism enhancing
services, a demonstration of how the tourism enhancing services
benefits the properties within the District, (c) a determination of
how to fairly apportion that benefit among the properties in the
District, and (d) a comparison of the results with the destination
marketing results in other markets as a verification measure.

11. The districts tourism marketing services designed to attract

overnight visitors with additional funding to cover a new
marketing and promotional budget needed to reach additional
market segments are necessitated by the need to ensure that the
City and the district will remain a competitive tourism market.
Accordingly, it is fair and reasonable to impose assessments only
against assessed property as set forth in the Ordinance and this
Assessment Resolution.

12. The Council finds that the methodology utilized by the Report
results in the imposition of a special assessment is an equitable and
efficient method of allocating and apportioning the cost of the
tourism marketing services among parcels of property that are

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 specially benefited thereby and that demand and receive the
tourism marketing services from the district.

13. As proposed in the Report, the assessments to be set by this

Assessment Resolution provide an equitable method of funding the
tourism marketing services attributed to the designated properties
within the District by fairly, equitably, and reasonably allocating
the tourism marketing services to specially benefitted properties
that are assessed on the basis of the burden expected to be
generated by the use of such property.

Based on these findings, the City Council approved Resolution No. 2017-321, which

accepted the Assessment Methodology Report, approved the assessment roll, levied the

assessment, and established the method of collection from the properties.

At the same hearing, the City Council also approved a three party agreement with the

Hillsborough County Tax Collector, the Hillsborough County Hotel & Motel Owners

Association, and the City (hereafter the Agreement). Mandated by the Ordinance, the

Agreement provides that the tax collector shall collect the special assessments and then forward

the special assessments to the City of Tampa. The assessments are then remitted to the Owners

Association, who is tasked with developing, for consideration by the City Council, a

recommendation for services to be provided and an annual budget. The City Council has

ultimate approval over the budget. The Owners Association is required to keep books of record

and account separate from all other records in accordance with generally accepted accounting

principles. The Owners Association also agreed to abide by the Sunshine Law, the Public

Records Act, and any auditing or distribution expenditure requirements in the same way as a

dependent special district. At no point, however, did the Ordinance or any action by the City

create a dependent special district, as set forth below. The dependent special district model was

simply used as guide for certain actions of the Owners Association.

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 At no time during the numerous proceedings and hearings of the City Council did anyone

object to the adoption of the Ordinance, the approval of the Assessment Methodology Report, the

approval of the assessment roll, the levy of the special assessment, or the approval of the

Agreement. Section 24.5-13, Code of Ordinances, provides that The adoption of a District

assessment resolution shall be the final adjudication of the issues presented (including, but not

limited to, the apportionment methodology, the rate of assessment, and the levy of the

assessments), unless proper steps are initiated in a court of competent jurisdiction to secure relief

within twenty (20) days from the date of council adoption of the district assessment resolution.

No such complaint was filed.

The Speaker filed a Complaint for Writ of Quo Warranto on October 26, 2017, seeking

to void the Ordinance, the resolution setting the assessment, and the contract duly adopted and

approved by the City of Tampa. The Speaker admits that neither he nor the Florida House have

a real or personal interest for standing purposes; rather, he brings this complaint seeking to

enforce a public right. The Speaker has not alleged that either he or the Florida House own

property within the geographic boundaries of the District, nor has he alleged that he is subject to

or has paid the special assessment. The Speaker has not alleged that he is a party to or affected

in any way by the Agreement. The Speaker has failed to allege that he or any member of the

Florida House appeared at or objected to the adoption of the Ordinance, Assessment Resolution,

or the Agreement, nor has he alleged that this complaint was filed within twenty (20) days from

April 6, 2017 (that is, the date of adoption of the Assessment Resolution). Nevertheless, the

Speaker has asked this Honorable Court to declare void a regular Ordinance, Resolution, and

Agreement.

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 Summary of the Argument

The Speaker has not and cannot obtain a writ of quo warranto from this Court pursuant to

Article V, Section 5, of the Florida Constitution because he has failed to allege an actual case or

controversy for which he has standing. And he cannot show he is defending a public right. Nor

can he lawfully initiate a Quo Warranto proceeding in this Court pursuant to Article V, Section

3(b) of the Florida Constitution because such complaints must be filed in the Supreme Court, can

only be filed to challenge the action of a state officer or state agency, and cannot raise issues that

require fact finding.

Even if the Speaker had standing to file an action in this Court, he could not prevail

because he failed to timely exhaust available administrative remedies by failing to appear at any

of the several public hearings to object to the special assessment or to timely challenge the

special assessment through an action in the circuit court, waiving his right to challenge the

assessment. But even if the Speaker had timely filed a complaint in circuit court challenging the

special assessment, he has failed to allege the properties assessed do not derive a special benefit

from the services provided, or that the assessment is unfairly and unreasonably apportioned.

Additionally, the Speakers arguments regarding chapter 189, Florida Statutes, are

inapplicable because no such special district was created, nor was the City required to create a

special district to levy the special assessment. As a matter of public policy, this Court should

refrain from exercising its discretion to grant such an extraordinary writ to a plaintiff, a member

of one house of the State Legislature acting in his official capacity no less, in the absence of

standing, an actual case or controversy between the parties, participation in and exhaustion of

remedies within the prior available proceedings, and any allegations whatsoever that the special

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assessments fail to comply with Floridas applicable legal standards. The City requests that this

Court dismiss the Speakers Complaint.

Argument

I. The Speaker has failed to properly invoke this Courts jurisdiction, lacks standing,
and has failed to exhaust administrative remedies.

A. Jurisdiction

Whether a petition for quo warranto may be filed in the Supreme Court, the District

Courts of Appeal, or the Circuit Courts, depends on the nature of the dispute and the target of the

petition. The Supreme Court [m]ay issue writs of mandamus and quo warranto to state officers

and state agencies under Article V, section 3(b)(8). District Courts of Appeal and Circuit

Courts, under Article V sections 4(b)(3) and 5(b), respectively, may issue writs of mandamus,

certiorari, prohibition, quo warranto, and other writs necessary or proper to the complete

exercise of [their] jurisdiction.

The Speaker attempts to invoke the jurisdiction of this Court under Article V, section 5 of

the Florida Constitution. The circuit courts of Florida have jurisdiction to issue writs of quo

warranto where the matter in controversy is within the courts subject matter jurisdiction and the

individual defendant is within the courts territorial jurisdiction. Art. V, 5, Fla. Const. Quo

warranto is used either to determine the right of an individual to hold public office or to

challenge a public officers attempt to exercise some right or privilege derived from the state.

State ex rel. Bruce v. Kiesling, 632 So. 2d 601, 603 (Fla. 1994).

[A]ctions in the nature of quo warranto to question the authority for the exercise of

rights, privileges[,] and powers derived from the state can be brought by any person, and the

people are the real party to the action. Macnamara v. Kissimmee River Valley Sportsmans

Assn; 648 So. 2d 155, 164 (Fla. 2d DCA 1994) (quoting Martinez v. Martinez, 545 So. 2d 1338

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(Fla. 1989)). The court in Macnamara addressed the plaintiff associations ability to bring a quo

warranto action to prevent a private party from fencing off state-owned land. The association

was defending the publics right to access and use state-owned land.

By his Complaint, the Speaker challenges what he labels as the City of Tampas

imposition of an illegal tax so that he might enforce a public right. [Complaint 6]. Not so.

The Speakers action does not implicate any public right. Simply put, the voluntary payment

of an individual assessment which the property owners petitioned the City to assess, no less

is not a public right nor does it impose on such rights. The subject Ordinance levies an

assessment against 13 tourism properties that those property owners may pass . . . on to guests.

24.5-2, Ordinance. Attacking an ordinance levying a voluntary assessment that the properties

owners may pass on to their guests is not the enforcement of a public right. By its very nature,

a challenge to an assessment levied on particular parcels (whose owners petitioned the City to

impose such an assessment) is the attempt to enforce a private right.

The Speaker also, by this action, seeks an adjudication of the legality of the Citys prior

acts and to restrain the City from continuing to engage in such acts. This is not a proper basis for

a quo warranto proceeding. A quo warranto proceeding against an officer is not a proper

remedy to test the legality of his past or future conduct or acts, and to compel, restrain, or obtain

a review of such conduct or acts, where they do not ipso facto operate as or constitute grounds

for forfeiture of the office, and neither title to the office nor the right to a franchise is involved.

State ex rel. Landis v. Valz, 117 Fla. 311, 319 (Fla. 1934). Simply stated, [m]ere function of

office, as distinguished from the office itself, may not be the subject of quo warranto. Id.

Through his petition for a writ of quo warranto, the Speaker attacks not the existence of

the power of the City to act, but rather, the manner in which the City exercised an existing

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power. But the cases he relies upon to establish jurisdiction, in particular, Whiley v. Scott, 79

So. 3d 702, 707 (Fla. 2011) and Florida House of Representatives v. Crist, 999 So. 2d 601 (Fla.

2008) are distinguishable on their facts and inapplicable to the present action.

Those cases were brought under Article 5, section 3(b)(8), which grants the Supreme

Court authority to issue writs of quo warranto to state officers and state agencies. Those cases

concerned separation of powers issues and targeted state officers or state agencies. Those cases

did not address the peculiar circumstances here in which the leader of one of the two houses of

the Florida Legislature has taken it upon himself to challenge not another state officer or agency

but a municipality exercising its home rule powers. And the Speaker has done so in his official

capacity, no less, as he is otherwise without power to mount such challenges.

In Florida House of Representatives v. Crist, Speaker Marco Rubio filed a petition for

writ of quo warranto challenging the Governors authority to bind the State to a compact he

signed with the Seminole Tribe. Id. at 603. The Florida Supreme Court granted the petition on

narrow grounds, acting under Article V, section 3(b)(8) of the Florida Constitution and holding

the Governor did not have the constitutional authority necessary to bind the State to a gaming

compact without authorization or ratification by the Florida Legislature. The Supreme Court

found it had jurisdiction to issue the writ directed to the Governor under Article V, section

3(b)(8), which expressly authorizes the Florida Supreme Court to issue writs of mandamus and

quo warranto to state officers and state agencies. Id. at 607. Notably, in addressing the merits

of the Houses petition, the Court did not need to engage in any fact-finding, but simply

reviewed the use of the term compact, its historical significance in Florida, and the relevant

provisions of the Florida Constitution to determine the Governor exceeded his authority to act

under Floridas Constitution. Id. at 608.

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 The Court in Whiley v. Scott, 79 So. 3d 702 (Fla. 2011) addressed a similar challenge to

the Governors authority. That petition challenged the Governors use of executive orders to

suspend agency rulemaking by requiring agencies to obtain permission from the Office of Fiscal

Accountability and Regulatory Reform (OFARR) before engaging in rulemaking, an activity

delegated by the Legislature. Again, the Florida Supreme Court engaged in no fact finding, but

simply reviewed the constitutional provision regarding separation of powers in the context of the

Administrative Procedures Act and concluded the Governors actions violated the Constitution.

Because the writ was directed to a state officer the Governor and did not involve any material

disputes of fact, the Court concluded it had jurisdiction to entertain the petition. Id. at 708.

The Speaker here cannot seek relief under Article V, section 3(b)(8). Such actions must

be brought in the Supreme Court and are directed towards state officers and state agencies, not a

municipality such as the City of Tampa. Nor are such actions appropriate for cases that require

fact finding.

Quo warranto is likewise improper here because even if he could establish standing, the

Speaker has an alternative avenue of relief: a suit for declaratory judgment (to the extent he can

properly allege grounds for such an action). State ex rel. Gibbs v. Bloodworth, 134 Fla. 369,

372, 184 So. 1, 2 (Fla. 1938) (The writ of quo warranto will not be issued where there is another

ample and sufficient remedy provided by law for the relief sought.). Quo warranto, an

extraordinary remedy at common law, is not permitted when an adequate remedy at law is

available for the relief sought. State ex rel. Gibbs v. Bloodworth, 134 Fla. 369, 184 So. 1 (Fla.

1938). As such, this Court should decline to exercise jurisdiction and dismiss the Complaint.

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 B. Standing

Quo warranto is not available as a means by which the Speaker of the House can attack a

municipalitys exercise of its home rule powers. And the Speaker likewise lacks the requisite

standing to assert any such challenge to the Citys exercise of its home rule powers. Notably, the

Speaker has brought this lawsuit in his name, not as a citizen or taxpayer, but expressly (and

conspicuously) in his official capacity as Speaker of the Florida House of Representatives.

The Speaker, however, lacks standing to challenge the validity of a regularly adopted municipal

ordinance in his official capacity as Speaker of the Florida House of Representatives.

Courts have recognized that the Comptroller and Attorney General may, in certain

circumstances, file suit to challenge the constitutionality of legislation. See, e.g., Dickinson v.

Stone, 251 So. 2d 268 (Fla. 1971); Green v. City of Pensacola, 108 So. 2d 897 (Fla. 1st DCA

1959); Dept of Administration v. Horne, 269 So. 2d 659 (Fla. 1972); State ex rel. Landis v. S.H.

Kress & Co., 115 Fla. 189, 155 So. 823 (Fla. 1934); State ex rel. Moodie v. Bryan, 50 Fla. 293,

39 So. 929 (Fla. 1905). But there is no authority supporting the Speakers standing, in his

official capacity, to challenge a legislative act of a municipality such as the subject Ordinance.

See, e.g., Dept of Educ. v. Lewis, 416 So. 2d 455, 459 (Fla. 1982)(recognizing limited standing

of state comptroller and attorney general to challenge constitutionality of legislation but

explaining the commissioner of education, in his official capacity, did not have such standing);

Jones v. Dept of Revenue, 523 So. 2d 1211, 1214 (Fla. 1st DCA 1988)(finding property

appraiser lacked standing in his official capacity to challenge constitutionality of taxing statute);

Crossings at Fleming Island Comm. Dev.t Dist. v. Echevern, 991 So. 2d 793, 799 (Fla.

2008)(explaining generally that property appraiser had no standing to challenge constitutionality

of taxing statute).

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 The Speaker has suffered no injury in his official capacity, and neither has the Florida

House of Representatives on whose behalf he purports to prosecute this action. Nor does he

even attempt to allege injury. He cannot. The Citys Ordinance on its face does not

encroach upon the Speakers position or official duties, as Speaker or as a member of the

Legislature.

Rather, the Speakers injury, if any, would be in his private or personal capacity. But

again, he has failed to allege any such injury. Instead, he relies generally (and incorrectly) on the

assertion that he challenges the Citys imposition of an illegal tax, seeks to enforce a public

right, and therefore need not demonstrate the standing required of every other litigant who

challenges a municipal ordinance. According to the Speaker, unlike every other litigant, he need

not demonstrate a real or personal interest for purposes of standing.

Importantly, however, the cases the Speaker relies upon, Whiley and Christ, involved,

respectively, state taxpayer standing to challenge the Governors use of executive orders and the

Legislatures challenge to the Governors authority to bind the state to a compact with the

Seminole Tribe. Those cases involved either injuries suffered by taxpayers or injuries suffered

by the legislators, in their official capacities, by virtue of the Governors exercise of power in

violation of the separation of powers provision of the Florida Constitution. These cases are in no

way comparable to a state legislators action challenging a municipalitys exercise of its home

rule powers. The Speaker has no standing in his official capacity as the Ordinance does not

affect his office, nor can he demonstrate taxpayer standing as set forth below.

The Florida Supreme Court has repeatedly held that citizens and taxpayers lack standing

to challenge a governmental action unless they demonstrate either a special injury, different from

the injuries to other citizens and taxpayers, or unless the claim is based on the violation of a

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provision of the Constitution that governs the taxing and spending powers. Herbits v. City of

Miami, 207 So. 3d 274, 281 (Fla. 3d DCA 2016); see also Solares v. City of Miami, 166 So. 3d

887, 888 (Fla. 3d DCA 2015) (noting that courts must be presented with a justiciable case or

controversy between parties who have standing, which in turn requires either a special injury,

different from the injuries to other citizens and taxpayers or that the claim is based on the

violation of a provision of the Constitution that governs the taxing and spending powers). And

there are no unique circumstances that present an exception to the standing requirement.

Solares, 166 So. 3d at 888 (citing Sch. Bd. of Volusia County v. Clayton, 691 So. 2d 1066, 1068

(Fla. 1997)).

The Speaker does not claim any special injury, but rather claims the Citys ordinance is in

violation of statutory law, in particular, 125.0104, Florida Statutes. By that statute, the

Legislature authorized counties, but not municipalities, to assess a tourist development tax on

hotel room rentals. [Complaint 29]. Such a claim does not fall within the limited exception to

the special injury requirement where a taxpayer can establish standing if he can show a

government taxing measure or expenditure violates a specific constitutional limitation on the

Legislatures taxing and spending power. McCall v. Scott, 199 So. 3d 359, 369 (Fla. 1st DCA

2016).

[C]laims of statutory and general law violations fall short of the requirement that a

taxpayer allege violations of specific constitutional limitations on taxing and spending powers

to demonstrate taxpayer standing. Martin v. City of Gainesville, 800 So. 2d 687, 689 (Fla. 1st

DCA 2001) (finding taxpayer failed to demonstrate standing by claiming citys employment

policies were forbidden as otherwise provided by law as set forth in Art. VIII, 2(b) or Article

VII 1(a), 9(a), Fla. Const., and 741.212, Fla. Stat.). As such, the Speakers allegation that the

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Citys Ordinance violates the as otherwise provided by law provision of Article VIII, section

2(b) of the Florida Constitution and section 125.0104, Florida Statutes, or any other statutory

provisions, fails to demonstrate the standing necessary to sue as a taxpayer.

Moreover, as part of his Complaint, the Speaker challenges an interlocal agreement to

which he is not a party. Absent status as a party or third party beneficiary, a litigant has no

standing to contest the legality or performance of an agreement. Land & Sea Petroleum, Inc. v.

Business Specialists, Inc., 53 So. 3d 348, 355 (Fla. 4th DCA 2011) (A party is a third-party

beneficiary of a contract only if both parties to the contract express an intent to primarily and

directly benefit the third party or a class of persons to which that party claims to belong.);

Kiwanis Club of Little Havana, Inc. v. de Kalafe, 723 So. 2d 838, 841 (Fla. 3d DCA 1998)([A]s

de Kalafe is not a party to the Kiwanis-P&G agreement she has no standing to challenge the

rights of the parties in the agreement.); Genet Co. v. Annheuser-Busch, Inc., 498 So. 2d 683,

685 (Fla. 3d DCA 1986) (finding prospective purchasers of Anheuser-Busch wholesalership had

no standing to challenge compliance with the terms of an agreement between the franchisor and

franchisee).

C. Failure to Exhaust Administrative Remedies

Even if the Speaker had standing to challenge the Ordinance, his claim would

nevertheless fail for failure to exhaust administrative remedies. It is well-settled that a party

claiming to be aggrieved by the application of a statute or ordinance must invoke and exhaust

administrative remedies provided therein before he may resort to judicial relief. DeCarlo v.

Town of West Miami, 49 So. 2d 596 (Fla. 1950) (party may not seek injunctive relief on the

ground a zoning ordinance is invalid without first exhausting administrative remedies available

under the ordinance). As a general rule, parties are required to pursue administrative remedies

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before resorting to the courts to challenge agency action. Central Fla. Inv., Inc. v. Orange

County Code Enforcement Board, 790 So. 2d 593, 596 (Fla. 5th DCA 2001).

The Ordinance provides that the adoption of a District assessment resolution, or any

amendment thereto . . . shall constitute the levy of an assessment . . .. 24.5-13, Ordinance. It

further provides that such adoption of a District assessment resolution shall be the final

adjudication of the issues presented (including, but not limited, the apportionment methodology,

the rate of assessment, and the levy of the assessments), unless proper steps are initiated in a

court of competent jurisdiction to secure relief within twenty (20) days from the date of council

adoption of the District assessment resolution. 24.5-13, Ordinance. The Speaker here failed to

exhaust his administrative remedies under the Ordinance.

The Speaker may assert that he has launched a facial attack on the Ordinance. But any

assertion would be a ruse. The Speakers claims cannot withstand an as-applied review.

Challenging the Ordinance as imposing an illegal tax requires review of the assessment

methodology itself. Reviewing the assessment methodology would reveal that the Ordinance, in

fact, imposes an assessment against the benefited properties not a tax. Reviewing the

assessment methodology likewise would reveal the assessment is rational.

A thorough review of the Complaint shows the Speaker is attacking the ordinance as it

applies to the affected properties. In particular, the Speaker (wrongly) attacks the analysis

behind the assessment and the methodology governing the application of the assessments against

the affected properties, but does so without analyzing the assessment methodology, which is

conspicuously missing from his Complaint exhibits and appendix. The Speakers very position

that the Ordinance imposes an unlawful tax hinges on his ability to invalidate the assessment

methodology and demonstrate the assessment is actually a tax. But because the Speaker asserts

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an as-applied challenge to the Ordinance, he is required to demonstrate he has exhausted the

administrative remedies provided by the Ordinance. He has failed to do so.

The Ordinance here was duly noticed, a public hearing was held, and no objections were

voiced as to the adoption of the proposed ordinance, the approval of the Assessment

Methodology Report, the approval of the assessment role, the levy of the special assessment, or

the approval of the three-party agreement between and among the City, the Hillsborough County

Tax Collector, and the Hillsborough County Hotel & Motel Owners Association. Because the

Speaker asserted an as-applied challenge, contesting not only the Citys authority, but its

methodology as applied to the particular properties affected by the Ordinance, he was first

required to exhaust his administrative remedies.

II. The Assessment is valid and is not an illegal tax as the Speaker argues.

The Speakers claims would likewise fail even if he could establish standing because

he has not and cannot demonstrate that the special assessment is invalid. This Courts review of

a special assessment is confined to (1) whether the municipality has the authority to issue the

assessment; (2) whether the purpose of the assessment is legal; and (3) whether the assessment

complies with the requirements of the law. Morris v. City of Cape Coral, 163 So. 3d 1174,

1176 (Fla. 2016).

Focusing on discrete portions of the Resolution and conducting an eyeball comparison

of the Resolution and the Local Option Tourist Development Act, 125.0104, Florida Statutes,

the Speaker argues that because the assessment looks like a tax, it is a tax. But that is not the

legal standard Florida courts follow. [A] valid special assessment must meet two requirements:

(1) the property assessed must derive a special benefit from the service provided; and (2) the

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assessment must be fairly and reasonably apportioned according to the benefits received. Id.

(citing Sarasota Cnty. v. Sarasota Church of Christ, 667 So. 2d 180, 183 (Fla. 1995)).

Before the 1973 enactment of the Municipal Home Rule Powers Act, 166.011, Fla.

Stat., et seq., municipalities were limited to those powers that were specifically delegated by the

legislature. Susan Churuti, The Line Between Special Assessments and Ad Valorem Taxes, 45

Stetson L. Rev. 471, 475 (2016); see also City of Boca Raton v. State, 595 So. 2d 25, 28 (Fla.

1992). But under home rule, municipalities may exercise any governmental, corporate, or

proprietary power for a municipal purpose except when expressly prohibited by law . . .. Boca

Raton, 595 So. 2d at 28.

The Speaker argues the City has no authority to impose the assessment because it is a

tax and the Legislature, pursuant to section 125.0104, Florida Statutes, authorized only counties

not municipalities to impose an add-on tourist development tax on the rental of hotel

rooms. (Complaint 29). But this argument ignores the Ordinance as a whole, the broad home

rule powers municipalities enjoy, and the deferential standard of review afforded such legislative

enactments. When applying the two-prong test to determine the validity of an assessment, the

assessment must be upheld absent a finding it is arbitrary. Morris, 163 So. 3d at 1176-77.

Here, there is no question that the City had the legal authority to levy the special assessment as

long as it met the two-prong test outlined in Sarasota Church of Christ and Boca Raton. A

review of the Ordinance, as a whole, reveals that it does.

As set forth in Section 24.5-1, the City Council found there were certain areas within the

City where there is a need for proactive effort to provide services that specially and specifically

benefit tourism properties to increase occupancy; and that [t]ourism property owners, tourism

property representatives, and the Hillsborough County Hotel and Motel Association . . .

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requested that the City adopt an ordinance creating a new funding mechanism designed to attract

overnight visitors. Furthermore, under Section 24.5-2, the Assessment Rate is defined as the

method of apportioning the service costs among the parcels of property located within the

District. (emphasis added).

While the Ordinance permits the assessment rate to be based upon a fixed rate per

occupied room night sold at a tourism property, the assessments are applied against the subject

tourism properties in the district. Contrary to the Speakers assertions, [t]he assessment shall be

levied upon the lots or parcels of land within the District benefited by the services authorized in

the Ordinance and the property owners may pass the assessment on to guests. 24.5-2, 24.5-8,

Ordinance. There is no tax imposed on activity. The assessment is imposed on the benefited

properties and may be passed on to guests of those properties just as the property owners may

pass on other costs of the properties.

The Ordinance further defines the services to be funded by the assessments as the

marketing and promotions which will enhance tourism to be funded from the proceeds of the

assessment, and such services are to be designed to maximize incremental room nights for the

assessed tourism properties. (emphasis added). In turn, Tourism property is defined to

include any property which contains a tourist-serving lodging business, and initially includes

the thirteen (13) hotels depicted in the map attached to and incorporated into [the] Ordinance as

Exhibit A, and provides that additional properties may be included by amendment. The

Ordinance demonstrates that the properties assessed 13 hotel, motel, and short term rental

properties will receive the benefit of services designed to increase their unit rentals.

The Ordinance likewise demonstrates the assessment is fairly and reasonably apportioned

according to the benefits received because it is tied to the room occupancy rate, which occupancy

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the assessment is designed to increase. Because [t]he apportionment of assessments is a

legislative function, . . . if the evidence as to benefits is conflicting, as is generally the case, and

is predicated on the judgment of expert witnesses, the findings of the city officials will not be

disturbed. City of Gainesville v. Seaboard Coastline RR Co., 411 So. 2d 1339, 1340 (Fla. 1st

DCA 1982). Here, the assessment methodology is set forth in the Tourism Marketing District

Assessment Methodology Allocation Report, and the City Council relied upon that methodology

in passing the Ordinance.

Even if the Speaker had standing and presented evidence contrary to the analysis on

which the City Council relied, there would be no grounds on which to disturb the findings

supporting the Ordinance. Id. The burden of proof rests with the property owner not the

Speaker, an unaffected party to rebut the presumption of correctness of such special

assessments, which presumption may be overcome only by strong, direct, clear and positive

proof. Id. And any such evidence must be viewed in the light most favorable to the City.

Rinker Materials Corp. v. Town of Lake Park, 494 So. 2d 1123 (Fla. 1986). The Speaker lacks

standing to assert such a challenge, but even if he did, he could not demonstrate the Ordinance

imposes an invalid assessment.

But more fundamentally, the Speaker cannot demonstrate the assessment is an improper

tax. If the subject assessment were indeed a tax, it would be charged on all short term rentals

within the City limits, regardless of location or need, and the collected assessments would not be

limited to marketing services used to specifically benefit the 13 assessed properties as opposed to

being used for general municipal purposes. Those facts are evident from a review of the

Ordinance and methodology assessment.

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III. The Ordinance did not create a special district under chapter 189, Florida Statutes,
and therefore, the provisions of chapter 189 are inapplicable.

Because the Ordinance identifies and defines the Downtown/Historic Ybor Tourism and

Marketing District, a geographical area in which the specifically identified assessed properties

are situated, the Speaker argues the City was required to comply with Chapter 189, Florida

Statutes, the Uniform Special District Accountability Act. The Ordinance, however, did not

create a special district and the City was not required to comply with the mandates of Chapter

189 to levy the special assessment.

Rather, the City acted pursuant to its authority under Article VIII, Section 2 of the Florida

Constitution and Chapter 166, Florida Statutes. Article VIII, Section 2 Florida Constitution,

expressly grants to every municipality in this state authority to conduct municipal government,

perform municipal functions, and render municipal services, and the only limitation on such

power is that it must be exercised for a valid municipal purpose. City of Boca Raton v.

State, 595 So. 2d 25, 28 (Fla. 1992) (quoting State v. City of Sunrise, 354 So. 2d 1206, 1209

(Fla. 1978)).

Section 166.021(2), Florida Statutes, defines municipal purpose as any activity or

power which may be exercised by the state or its political subdivisions. In turn, subsection

section 166.021(3) provides that each municipalitys legislative body has the power to enact

legislation concerning any subject matter upon which the state Legislature may act except . . .

[t]he subjects of annexation, merger, and exercise of extraterritorial power . . . [a]ny subject

expressly prohibited by the constitution . . . [a]ny subject expressly preempted to state or county

government by the constitution or by general law; and . . . [a]ny subject preempted to a county

pursuant to a county charter adopted under the authority of ss.1(g), 3, and 6(e), Art. VIII of the

State Constitution. 166.021(3)(a)-(d), Fla. Stat.

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 The Speaker implies that the only method by which the City can assess particular parcels

is by creating a special district, but chapter 189 is not the only means by which municipalities

may levy special assessments. See, e.g., Boca Raton, 595 So. 2d at 29 (noting chapter 170 is not

the only means by which a municipality may levy assessments); Sockol v. Kimmins Recycling

Corp., 729 So. 2d 998 (Fla. 4th DCA 1999) (finding county was not required to establish a

municipal services benefit unit or municipal services taxing unit to impose a special assessment

for purposes of waste disposal). Nor does the mere description of the parcels assessed as a

district trigger the requirements of chapter 189, Florida Statutes. Rather, the City may levy

such assessments pursuant to its broad home rule powers without creating a special district.

IV. Public policy requires dismissal of the Speakers Complaint and Petition for Writ of
Quo Warranto

The Speakers purported enforcement of a public right is nothing more than a standing-

less, groundless politically-motivated attack on home rule. It lacks a factual or legal foundation,

and is inconsistent with constitutional and legislative enactments designed to convey and ensure

home rule authority. The Speakers action flouts the very constitutional and statutory provisions

he purports to champion.

The 1968 amendment of the Florida Constitution and the subsequent, 1973 enactment of

the Municipal Home Rules Power Act (MHRPA), chapter 166, Florida Statutes, monumentally

expanded municipalities ability to exercise self-governance. Pre-home rule, control of the

states Legislature over municipalities was plenary, but after home rule, the broad grant of

power . . . to exercise any power for municipal purposes . . . vested [ ] the authority for

decisions with respect to appropriate municipal purposes in the municipal governing body.

Ilene S. Lieberman and Harry Morrison, WARNING: Municipal Home Rule is in Danger of

Being Expressly Preempted, 18 Nova L. Rev. 1436, 1438-40 (1994).

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 In an effort to deny the City of its home rule power to levy assessments specially and

specifically intended to benefit the 13 identified tourist properties, the Speaker has wrongly

argued the assessments are taxes and thereby preempted and prohibited by the Local Option

Tourist Development Act. But the Speakers argument not only relies on a superficial and

cherry-picked review of the Ordinance, but it likewise fails to consider that the Ordinance is the

result of local businesses petitioning their local government to levy assessments that will benefit

their locally based, tourism-dependent properties.

Municipalities were provided home rule to legislate for municipal purposes. The very

purpose of 1968 constitutional revision and the MHRPA was to allow local governments to

address local concerns without the necessity of requesting permission from the state for every

legislative local act. The Speaker, by his action, turns this public policy on its head. In a blatant

act of overreach, the Speaker contends municipalities should not be able to levy assessments

urged by the very constituents whose properties are being assessed specifically intended to

benefit the local assessed properties that depend on tourism.

Permitting this action to proceed is not only contrary to law, but also public policy. The

Legislature passed the MHRPA in 1973 to clarify the broad home rule powers conferred by the

1968 constitutional revision. This case presents an unprecedented situation where a citizen and

leader of one of the two houses of the legislature, without any real interest in the assessment

scheme, questions the authority of a local government to assess and levy local properties whose

owners have petitioned and volunteered to pay such assessments for purposes of stimulating

local tourism business. If such a person is permitted to file a quo warranto proceeding on his

own relation, one cannot help but envision the door that would be opened to busybodies who

might make a practice of investigating every local government ordinance with which they

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disagree in order to run down some technical defect in the ordinance. Washington County

Kennel Club, Inc. v. State of Florida ex rel. Ward McAllister, 107 So.2d 176 (Fla. 1st DCA

1959). To obviate such a practice, the rule seems wise to require the Attorney General of the

state, the states chief law enforcement officer, to determine whether to allow the use of his name

in such proceedings. Id.

To permit the Speaker of the Florida House of Representatives, 44 years later and without

jurisdiction or standing, to launch an assault on the exercise of such home rule powers is contrary

to the very policy the Legislature promoted with the passage of the MHRPA. To permit this

Complaint to proceed would promote interference by state officials in matters that are clearly and

peculiarly matters of local concern and which do not implicate or interfere with any federal or

state constitutional rights. In the absence of any injury and the Speaker cannot under any

construction of the facts demonstrate a legally cognizable injury and in the face of constituent

requests that resulted in such local assessments, there is no basis on which this Complaint should

be allowed to proceed. The Complaint should be dismissed.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 7th day of December, 2017, I electronically filed the

foregoing with the Clerk of the Court using the E-Portal system which will automatically

transmit a copy of this pleading to: J. Carter Andersen, Esquire, candersen@bushross.com and Adam

S. Tanenbaum, Esquire, adam.tanenbaum@myfloridahouse.gov.

GRAYROBINSON, P.A.

/s/ David L. Smith

DAVID L. SMITH, ESQUIRE
Florida Bar No. 302139
david.smith@gray-robinson.com
jane.larose@gray-robinson.com
GRACE H. YANG, ESQUIRE
Florida Bar No. 120804

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 grace.yang@gray-robinson.com
maryjane.scalfari@gray-robinson.com
401 E. Jackson Street, Ste 2700
Tampa, FL 33602-5841
Telephone: (813) 273-5000
Facsimile: (813) 273-5145

AND

THOMAS A. CLOUD, ESQUIRE

Florida Bar No. 293326
thomas.cloud@gray-robinson.com
jan.gordon@gray-robinson.com
P.O. Box 3068
Orlando, FL 32802-3068
Telephone: (407) 843-8880
Facsimile: (407) 244-5690

AND

MONTEREY CAMPBELL, ESQUIRE

Florida Bar No. 11387
monterey.campbell@gray-robinson.com
linda.olson@gray-robinson.com
KRISTIE HATCHER-BOLIN, ESQUIRE
Florida Bar No. 521388
kristie.hatcher-bolin@gray-robinson.com
linda.olson@gray-robinson.com
Post Office Box 3
Lakeland, Florida 33802-0003
Telephone: (863) 284-2251
Facsimile: (863) 683-7462
Attorneys for Defendant
\546153\3 - # 10636578 v3

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