author: THOMPSON, J.

text:
    Aaron Lee COUSIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2966.
    District Court of Appeal of Florida, Fifth District.
    Nov. 21, 2003.
    James B. Gibson, Public Defender, and Lyle Hitchens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

Aaron Lee Cousin appeals his convictions for carjacking while armed with a dangerous weapon, aggravated assault with a deadly weapon, attempted felony murder, and burglary of a dwelling with a battery. We affirm because we conclude that the trial court did not abuse its discretion in consolidating the two cases against Cousin.

Dawn Simon, a cabdriver, testified that she drove Cousin and another male to two separate locations during the early morning of 16 June 2000. When they left the cab, they told her they had heard her call letters and would probably ask for her later. In the afternoon, Simon was dispatched to pick up a fare who had asked for her, and she recognized Cousin as the person she had driven earlier. She drove him from that location to two others and then to a supermarket where, at about 2:00 p.m., Cousin put a knife to her side and ordered her from the cab. She ran from the cab and called the police as Cousin fled in the cab.

Later the same day, Jon Boone entered his home and turned to close the door behind him when he was struck from behind. A man was stabbing him and repeating that he was going to kill him. Boone struggled and managed to hold the man’s wrists, after which the man took Boone’s proffered money and car keys and sped away in Boone’s vehicle. Boone’s wife, on her way home at about 4:80 p.m., saw Boone’s vehicle pass her in the opposite direction. She could not describe the driver, but she knew it was not Boone. In the meantime, Boone, suffering a collapsed lung, made his way to neighbors who took him to the hospital and called the police. Boone had tried to call the police, but his telephone did not work. The police who responded to the call found Simon’s cab stuck up to its axles in sand in a wooded area near Boone’s house. Nearby was a knife smeared with blood whose DNA matched Boone’s. Obvious hand prints matching Cousin’s were found on the rear of the cab and suggested that he may have tried to push the cab out of the sand. Boone’s wife found a pair of shoes in the house which did not belong to any member of the household, and hair found in the shoes yielded DNA that matched Cousin’s DNA. Simon identified Cousin as the person who took the cab, and Boone identified Cousin as the attacker.

On appeal, Cousin argues that the trial court abused its discretion in allowing the state to consolidate the charges relating to Simon with the charges relating to Boone. Florida Rule of Criminal Procedure 3.150 provides that two or more offenses may be charged in the same information when the offenses “are based on the same act or transaction or on two or more connected acts or transactions.” Although convenience and the preservation of the courts’ valuable resources justify the consolidation of charges, practicality and efficiency cannot outweigh the defendant’s right to a fair trial. Crossley v. State, 596 So.2d 447, 449-450 (Fla.1992). The standard of review for cases involving the consolidation or severance of charges is abuse of discretion. Id.

We affirm on the authority of Fotopoulos v. State, 608 So.2d 784 (Fla.1992). There, the defendant threatened to kill a woman unless she killed a man named Ramsey. Id. at 786. Ramsey was led to believe he was being initiated into a club and was tied to a tree. Id. The woman shot and killed Ramsey as the defendant videotaped. Id. Later, according to the woman, the defendant used the videotape as leverage to insure that she would murder his wife. Id. Eventually, the defendant told the woman to hire someone to kill his wife, and the woman did so. The person who was hired entered the defendant’s residence and shot the wife in the head but failed to kill her. Id. After his wife was shot, the defendant shot and killed the hired killer. Id.

On appeal, the defendant contended that the trial court should have severed the charge of first degree murder for the Ramsey killing from the other counts, which included first degree murder, attempted first degree murder, solicitation to commit first degree murder, and conspiracy to commit first degree murder. The supreme court disagreed, holding that severance was not required because the offenses were “clearly connected in an episodic sense.” Id. at 790. Furthermore, the court held, even if there had been separate trials, evidence of each offense would have been admissible at the trial of the other to show common scheme and motive, as well as the entire context out of which each criminal action occurred. Id.

In the instant case, as in Fotopoulos, there is more than a general temporal and geographic proximity linking the two sets of crimes because the first set of crimes helps explain the second set of crimes, and evidence of Cousin’s first set of crimes would have been admissible in a trial on the second set of crimes. See § 90.404(2), Fla. Stat. (“evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident”); Williams v. State, 110 So.2d 654 (Fla.1959). Here, the cab was found bogged down in the woods adjacent to the second crime scene, suggesting that Cousin either tried to flee through the woods and got stuck, or that he tried to hide the cab there. In either event, the cab’s proximity to the Boone residence is evidence that Cousin was near that crime scene, and the reason the cab tends to place Cousin at the second crime scene is that Simon testified that he stole it from her. Further, the first set of crimes gave Cousin a reason to flee and a motive for entering the Boone residence — either to hide or to lie in wait for a resident to return with a vehicle. Here, as in Fotopoulos, “one crime induced the other crime,” see Smithers v. State, 826 So.2d 916, 923 (Fla.2002), and therefore “a sufficient causal link existed to permit joinder,” id.

AFFIRMED.

PLEUS and TORPY, JJ., concur.

      . § 812.133(2)(a), Fla. Stat.

      . § 784.021(l)(a), Fla. Stat.

      . § 782.04(l(a)(2), Fla. Stat.

      . § 810.02(2)(a), Fla. Stat.


source: Caselaw Access Project

author: MONACO, J.

license: Public Domain

text:
    Doneel McNEAL, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3101.
    District Court of Appeal of Florida, Fifth District.
    Nov. 21, 2003.

      Doneel McNeal, Quincy, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

Doneel McNeal appeals the summary denial of his second rule 3.850 motion. All of the grounds contained for reversal alleged by Mr. McNeal are either successive, time barred, or barred by the law of the case doctrine, except for his assertion that his habitual offender sentence is illegal. Because Mr. McNeal could not legally be habitualized under the version of the statute under which he was convicted, we reverse.

Mr. McNeal pled guilty to trafficking in 200 grams or more of cocaine, but less than 400 grams, an included offense to the charged crime of trafficking in 400 grams or more of cocaine. He was sentenced to ten years in state prison as an habitual felony offender, pursuant to a plea bargain. His previous appeals left his judgment and sentence intact.

Mr. McNeal’s most recent rule 3.850 motion alleged, among other things, that his habitual offender sentence is illegal because he could not lawfully be habitualized for a trafficking offense. As the State acknowledges, this court held in Washington v. State, 814 So.2d 1187 (Fla. 5th DCA), review dismissed, 831 So.2d 675 (Fla.2002), that under the 1997 version of section 893.135(l)(b)l, Florida Statutes, a criminal defendant convicted of trafficking in cocaine in an amount of more than 200 grams, but less than 400 grams had to have been sentenced pursuant to the sentencing guidelines, and could not be sentenced as an habitual felony offender. See also Haynes v. State, 765 So.2d 928 (Fla. 2d DCA 2000).

The State argues, however, that since Mr. McNeal was sentenced in accordance with a plea bargain in which the State agreed to allow him to plea to a lesser included offense, it should on remand be given the option of either agreeing to Mr. McNeal being resentenced under the Criminal Punishment Code, or withdrawing from the plea agreement and either entering into a new agreement or trying Mr. McNeal for the originally charged offense. As the case law clearly supports this position, we agree. See, e.g., Clay v. State, 750 So.2d 153 (Fla. 1st DCA 2000); Rainey v. State, 741 So.2d 1207 (Fla. 1st DCA 1999). In the words of one of our sister courts, “Just as a defendant is not bound by a misconceived bargain, the state likewise is not bound to accept a sentence it did not bargain for.” Forshee v. State, 579 So.2d 388, 389 (Fla. 2d DCA 1991).

We, therefore, affirm the trial court’s order denying Mr. McNeal’s rule 3.850 motion, except with respect to his claim that his habitual offender sentence is illegal. In that regard we reverse the trial court’s order and remand. Upon remand, the State shall be given the option of either agreeing to the resentencing of Mr. McNeal under the Criminal Punishment Code on the lesser charge, or withdrawing from the plea bargain and proceeding against Mr. McNeal under the charge as originally brought.

AFFIRMED in part, REVERSED in part.

PETERSON and ORFINGER, JJ., concur.

      . See McNeal v. State, 751 So.2d 596 (Fla. 5th DCA 2000); McNeal v. State, 791 So.2d 488 (Fla. 5th DCA 2001), review dismissed, 805 So.2d 808 (Fla.2002).


author: ERVIN, J.

text:
    GOLFVIEW NURSING HOME, Appellant/Petitioner, v. STATE of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee/Respondent.
    Nos. 1D02-0027, 1D02-1966.
    District Court of Appeal of Florida, First District.
    Nov. 25, 2003.
    Alfred W. Clark, Tallahassee, for Appellant.
    Garnett Chisenhall, Assistant General Counsel, Agency for Health Care Administration, Tallahassee, for Appellee.
   ERVIN, J.

We consolidate these two appeals, both of which arise from an annual licensure survey of appellant’s facility, Golfview Nursing Home, conducted on April 3-5, 2001. Case No. 1D02-1966 is an appeal from final agency action finding Golfview in violation of various regulations and imposing civil penalties amounting to $25,000 in fines. Case No. 1D02-0027 is an appeal from final agency action imposing conditional licensure status on the facility as a result of the same alleged violations.

The facts are essentially undisputed. The Agency for Healthcare Administration (AHCA), appellee, conducted an annual li-censure survey of Golfview on April 3-5, 2001. During that survey, AHCA noted problems with the temperature of the hot water used at the facility. As a result, AHCA’s field office in St. Petersburg, Florida, filed an administrative complaint against Golfview on April 26, 2001, seeking to impose $25,000 in civil penalties based upon the following two deficiencies: (1) Golfview failed to ensure that the resident environment remained as free of accident hazards as possible in that there was a lack of a facility-wide system to ensure control of the hot water used by the residents, and (2) Golfview failed to administer the facility to ensure the highest practicable physical well-being of each resident in that excessive hot-water temperatures placed the residents at risk for burns and scalding. Golfview, through attorney Alfred Clark, filed a petition for a formal administrative hearing on May 16, 2001.

On May 24, 2001, while the above administrative proceeding was pending, AHCA’s Long Term Care Unit, Health Facility Regulation, in Tallahassee, Florida, sent a “Notice of Intent to Assign Conditional Licensure Status” to Golfview’s administrator, but did not send a copy to attorney Clark. This notice was based upon the survey completed on April 5, and the same deficiencies alleged in the administrative complaint. An election form was included with the notice of intent, and the administrator executed that form by checMng Option 1, which states: “I do not dispute the allegations of fact contained in the Notice of Intent and waive my right to object or to be heard. I understand that by waiving my rights, a final order will be issued that adopts the Notice of Intent and imposes the sanctions sought.”

In the meantime, the administrative complaint proceeded to formal hearing, and on November 6, 2001, a recommended order was issued which found that clear and convincing evidence failed to establish the deficiencies/violations charged and recommended no civil penalties be assessed.

On December 3, 2001, AHCA, relying on the election form previously executed by Golfview’s administrator, issued a final order imposing a conditional license on Golf-view. On December 13, attorney Clark, on behalf of Golfview, filed a motion to vacate or amend the final order, contending that the administrator had acted without the advice of counsel or knowledge of the effect of the election, and pointing out that Golfview had disputed the same facts and conclusions that formed the basis for the conditional license in the administrative proceeding that had resulted in the November 6 recommended order. That motion was abandoned, however, when Golf-view filed a notice of appeal, because it was unsure whether the motion tolled the time for appeal.

On April 15, 2002, AHCA entered a final order regarding the administrative complaint, adopting all the findings of fact set forth in the recommended order and all the conclusions of law except a portion of paragraph 55. In so doing, AHCA stated:

In paragraph 55, the ALJ concluded, contrary to the admissions of respondent [Golfview], that “there is no evidence of any on-going violation of the regulatory requirement for hot water temperatures.” The evidence of such a violation existed, but the violation is clearly to be mitigated given the circumstances of this particular case.

(Emphasis added.) AHCA therefore assessed no penalties and dismissed the administrative complaint. Golfview also appealed that order.

Golfview’s first issue in these consolidated appeals is that there is no competent, substantial evidence to support AHCA’s finding of “admissions” by Golfview; therefore, it erred in rejecting paragraph 55. AHCA concedes this point on appeal and agrees that the case should be remanded for entry of a revised final order adopting the recommended order’s findings of fact and conclusion of law without reservation. We accept that concession and therefore reverse the April 15 final order entered in Case No. 1D02-1966 and remand with directions to adopt the November 6, 2001, recommended order in toto.

In its two remaining issues on appeal, Golfview, pursuant to sections 120.68(7)(c) and (a), Florida Statutes (2000), argues that the December 3 final order imposing conditional licensure status should be reversed, (1) because the fairness of the proceedings or correctness of the action from which it resulted was impaired by a material error in procedure in that attorney Clark was never served with the notice of intent, and (2) because the validity of the final order depends on disputed facts for which Golfview was not afforded a hearing.

AHCA defends the December 3 order, arguing that the notice of intent initiated a totally separate, independent proceeding, ie., the “licensure proceeding,” from that commenced by the administrative complaint, ie., the “violation proceeding.” It reasons that the different burdens of proof in licensure and violation proceedings, ie., preponderance of the evidence and clear and convincing evidence, respectively, establish the separateness and independence of the two proceedings. AHCA concludes that while it had notice of Clark’s appearance for Golfview in the violation proceeding, it had no notice of Clark’s representation of Golfview in the licensure proceeding until after the final order was issued. In further support of its argument that the notice of intent was properly served only on GolMew’s administrator, AHCA relies on Resort Sales International, Inc. v. Florida Department of Business & Professional Regulation, 795 So.2d 1040 (Fla. 1st DCA 2001).

We find AHCA’s circuitous arguments misplaced. Initially, we reject AHCA’s argument that there were two separate, independent proceedings. Although different units within AHCA may be responsible for filing different documents, the fact remains that both the administrative complaint and notice of intent to impose conditional licensure status were filed for exactly the same reason: the alleged violations arising from the annual licensure survey conducted on April 3-5, 2001. AHCA was on notice that Clark represented Golfview regarding the administrative complaint by virtue of the petition for formal administrative hearing filed on May 16, 2001. AHCA cannot elude the notice responsibilities arising from that knowledge by creating the fiction of two separate and independent proceedings, particularly in light of the fact that attorney Mike Sasso, who represented AHCA in the formal administrative hearing, was also provided a copy of the notice of intent to impose conditional licensure status. As stated, the administrative complaint and notice of intent involved exactly the same cause of action. The fact that there were different types of sanctions, ie., civil penalties in the form of administrative fines and a reduction of licensure status, does not transform the licensure proceeding into two completely separate and independent proceedings. See Golfcrest Nursing Home v. Agency for Health Care Admin., 662 So.2d 1330, 1332 (Fla. 1st DCA 1995) (stating that the failure to correct the deficiencies discovered during an annual li-censure survey “would have resulted in sanctions against Golfcrest’s nursing home license, including administrative fines, a reduction in licensure rating, other civil penalties, and a reduction in Medicaid reimbursement”).

As for Resort Sales International, although there are some facial similarities to this case, it is factually and procedurally distinguishable. The administrative proceeding in Resort Sales was commenced by a notice to show cause properly served on the brokerage firm and brokers, who then defaulted, and their attorney did not appear until after the final order was entered. Here, the proceeding was commenced by service of the administrative complaint on Golfview, and once Golfview notified AHCA that it was represented by attorney Clark, copies of all legal documents concerning the subject matter of the administrative complaint, including the notice of intent to impose conditional licen-sure status, should have been provided to Clark. AHCA seeks to avoid this result by arguing the separateness and independence of the two administrative proceedings, much like the distinct circuit court and administrative proceedings in Resort Sales. We cannot agree, however, because, as previously explained, both the administrative complaint and notice of intent in the present case were parts of the same proceeding and involved the same cause of action. Thus, we find Resort Sales distinguishable and decline to apply it under the circumstances of this case.

Having determined that the two proceedings were inseparably connected, we next conclude that reversal is required under section 120.68(7)(c), because the fairness of the proceedings or correctness of the action giving rise to the conditional licensure order was impaired by a material failure in procedure. In the absence of procedures addressing applications to renew a previously granted nursing home license, we note that section 120.60(3), Florida Statutes (2000), which addresses the initial licensing procedure, provides persuasive authority for requiring service of the notice on Golfview’s attorney. Section 120.60(3) provides as follows:

Each applicant shall be given written notice either personally or by mail that the agency intends to grant or deny, or has granted or denied, the application for license. The notice must state with particularity the grounds or basis for the issuance or denial of the license, except when issuance is a ministerial act. Unless waived, a copy of the notice shall be delivered or mailed to each party’s attorney of record and to each person who has requested notice of agency action.

(Emphasis added.) Similarly, section 120.569(1), Florida Statutes (2000), which addresses decisions affecting the substantial interests of a party, anticipates that notices will be mailed to a party’s attorney of record, by stating: “Unless waived, a copy of the order shall be delivered or mailed to each party or the party’s attorney of record at the address of record.” Accord Fla. Admin. Code R. 28-106.110 (“Unless the presiding officer otherwise orders, every pleading and every other paper filed in a proceeding, except applications for witness subpoenas, shall be served on each party or the party’s representative at the last address of record.”). There is no evidence that Golfview waived its right to have a copy of the notice delivered to its attorney; therefore, AHCA was required to provide a copy of the notice of intent to impose a conditional license on attorney Clark. As a result of the conflicting results in the two final orders, it is apparent that AHCA’s failure to provide a copy of the notice of intent to attorney Clark caused the fairness of the proceedings or the correctness of the action to be impaired, and reversal is required under section 120.68(7)(c).

Because we have determined reversal is required under section 120.68(7)(c), we need not consider Golfview’s second issue urging reversal under section 120.68(7)(a), under the theory that there was no hearing and the validity of the action depends upon disputed facts.

In conclusion, we REVERSE the April 15, 2002, final order in Case No. 1D02-1966 and REMAND with directions to adopt the November 6, 2001, recommended order in toto. We likewise REVERSE the December 3, 2001, order imposing conditional licensure status on Golfview.

ALLEN and LEWIS, JJ., CONCUR.


author: BOOTH, J. BENTON, J.,

text:
    John Richard THERRIEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-3403.
    District Court of Appeal of Florida, First District.
    Nov. 25, 2003.
    Charles V. Peppier of Vernis & Bowling of Northwest Florida, Pensacola, for Appellant.
    Charlie Crist, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   BOOTH, J.

This cause arises from an appeal of a post-judgment order designating Appellant as a sexual predator pursuant to section 775.21, Florida Statutes (2000), as amended effective October 1,1998.

The order on review addressed the October 1998 amendment to the Florida Sexual Predator Act (“Florida Act”). The trial court found the amendment’s expansion of the sexual predator criteria, to include attempted sexual battery as a qualifying felony and permit sexual predator status without a predicate conviction, was procedural. Therefore, the trial court concluded that the 1998 amendment to the Florida Act could be applied retroactively to Appellant’s August 1997 convictions for attempted sexual battery upon a person less than 12 years old and lewd and lascivious assault upon a child less than 16 years old. The trial court also held that the Florida Act does not violate separation of powers.

On appeal, Appellant argues that the Florida Act violates separation of powers and procedural due process requirements. Appellant also challenges the retroactive application of the amended Florida Act to him. We affirm Appellant’s designation as a sexual predator and hold that the Florida Act is constitutional and was properly applied retroactively to Appellant.

The Florida Act provides that those meeting the criteria of “sexual predator” are subject to registration and notification requirements and to certain employment restrictions. Thus, “sexual predators” must register with the Florida Department of Law Enforcement within 48 hours of being released from a correctional or treatment facility and within 48 hours of entering a county to take up residence. § 775.21(6), Fla. Stat. (2000). The Florida Act also requires that local law enforcement agencies notify the public of each registered sexual predator’s name, appearance, address, and certain details of the offense, including whether the victim was a minor. § 775.21(7), Fla. Stat. (2000). Finally, the Florida Act prohibits certain sexual predators from obtaining employment that affords access to children. § 775.21(10)(b), Fla. Stat. (2000).

In March 2003, the United States Supreme Court rendered its decisions in Connecticut Dep’t of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003), and Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), addressing the constitutionality of sexual predator acts in Connecticut and Alaska. In Connecticut, supra, at 1163, the United States Supreme Court explicitly rejected the defendant’s argument that the registration and notification requirements of the Connecticut statute violated procedural due process. The United States Supreme Court held, in pertinent part, as follows:

[EJven assuming, arguendo, that the respondent has been deprived of a liberty interest, due process does not entitle him to a hearing to establish a fact that is not material under the Connecticut statute.... [T]he fact that respondent seeks to prove — that he is not currently dangerous — is of no consequence under Connecticut’s Megan’s Law.... [T]he law’s requirements turn on an offender’s conviction alone—a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest. No other fact is relevant to the disclosure of registrant’s information.

Connecticut, supra, at 1164 (citations omitted) (emphasis supplied). In Smith, supra, at 1154, the United States Supreme Court upheld the constitutionality of the Alaska Sex Offender Registration Act, requiring registration and publication of sex offender information. The Court held that the Act was nonpunitive and did not violate the Ex Post Facto Clause. Smith, supra, at 1152.

In the instant case, Appellant’s conviction is the only material fact necessary for the imposition of the requirements of section 775.21. Appellant does not challenge the hearing afforded on his plea nor the opportunity allowed to contest his conviction. Appellant is not entitled to a separate hearing to prove that he does not pose a danger or threat to society.

As with the registration and notification requirements, the only material fact relevant to an employment restriction for sexual predators is a conviction involving minors. Therefore, in the present case, the only material fact for imposition of the employment restrictions is Appellant’s conviction of an offense involving a minor. Accordingly, we hold that section 775.21 does not violate Appellant’s rights to procedural due process under the state or federal constitutions. Accord Milks v. State, 848 So.2d 1167 (Fla. 2d DCA 2003) (holding that, based on the United States Supreme Court decision in Connecticut, the Florida Act does not violate procedural due process requirements). But see Espindola v. State, 855 So.2d 1281 (Fla. 3d DCA 2003) (holding that the Florida Act was distinguishable from the statutes in Smith and Connecticut and, therefore, violated procedural due process and certifying conflict with Milks).

Appellant correctly argues that an amendment that creates new rights or liabilities is presumed to apply prospectively. The presumption does not apply, however, where, as here, the Legislature has clearly stated an intent that the Act apply retroactively. See Hassen v. State Farm Mut. Auto. Ins. Co., 674 So.2d 106 (Fla.1996). Section 775.21(4), Florida Statutes (2000), provides that the Act applies to offenses “committed on or after October 1, 1993.”

Once the statute shows a clear intent for retroactive application, the second inquiry is “whether retroactive application is constitutionally permissible.” Metropolitan Dade County v. Chase Fed. Hous. Corp., 737 So.2d 494, 499 (Fla.1999). We hold that the retroactive application of section 775.21 is constitutionally permissible because the statute does not violate the procedural due process clauses of the state and federal constitutions. Connecticut, supra; Smith, supra. Therefore, the trial court did not err in applying section 775.21(4), as amended, to Appellant.

We affirm Appellant’s remaining arguments on appeal without further discussion. We certify the following question as a question of great importance:

WHETHER THE RETROACTIVE APPLICATION OF THE PERMANENT EMPLOYMENT RESTRICTIONS OF SECTION 775.21(10)(b), FLORIDA STATUTES (2000), TO A DEFENDANT CONVICTED AND QUALIFIED AS A SEXUAL PREDATOR, WITHOUT A SEPARATE HEARING ON WHETHER SUCH DEFENDANT CONSTITUTES A DANGER OR THREAT TO PUBLIC SAFETY, VIOLATES PROCEDURAL DUE PROCESS.
AFFIRMED.

VAN NORTWICK, J., CONCURS; BENTON, J., DISSENTS WITH WRITTEN OPINION.

BENTON, J.,

dissenting.

The present case asks the question whether a person never adjudicated guilty of any crime can nevertheless constitutionally be precluded for life from working anywhere children regularly congregate, without being afforded an opportunity to show that doing so would pose no danger to the public safety. In my judgment, the answer to this question is no, and I respectfully dissent from the judgment of the court for that reason.

Appellant was arrested and charged as a juvenile for offenses that allegedly took place in November of 1996, when he was sixteen. Eventually prosecuted as an adult, he entered pleas of nolo contendere to two second degree felonies: attempted sexual battery by a person under eighteen years of age upon a person under twelve years of age, in violation of section 794.011(2)(b), Florida Statutes (1995), and lewd and lascivious assault upon (apparently the same) child less than sixteen years of age, in violation of section 800.04, Florida Statutes (1995).

An able and highly experienced trial judge decided against adjudicating appellant guilty of any criminal offense, no doubt in the hope that appellant had learned his lesson and would one day become a contributing member of society. The trial court withheld adjudication of guilt on both counts, and imposed concurrent five-year probationary terms conditioned on a county jail sentence of eleven months and fifteen days, which was suspended.

On October 6, 2000, the state filed its amended motion for an order finding that appellant qualified as a sexual predator under the Florida Sexual Predators Act. The motion relied on amendments enacted after appellant had allegedly committed the offenses nearly four years earlier. After a hearing on the motion, the trial court entered the order under review, finding on August 7, 2001, that appellant qualified as a sexual predator, and ordering him to register with the Florida Department of Law Enforcement.

In addition to registration and publicity-requirements, the Act’s prohibition against “workpng], whether for compensation or as a volunteer, at any business, school, day care center, park, playground, or other place where children regularly congregate” precludes appellant’s working in all occupations that involve interaction with children, and in many that do not. § 775.21(10)(b), Fla. Stat. (2000). The french fry cook in a fast food establishment that high school students regularly patronize, the school janitor, the day care center roofer, the park groundskeeper, and many other positions are off limits for people covered by the Act. This blanket, life-long restriction on the right to work “[anyjwhere children regularly congregate” makes no provision for an individual to whom it applies to make a showing that his or her employment poses no threat to public safety.

Appellant contends that the Act’s failure to afford an opportunity for individuals meeting the statutory criteria for disqualification from employment to present evidence that their employment would in fact pose no danger violates state and federal procedural due process requirements.

The Fourteenth Amendment reads in part: “nor shall any State deprive any person of life, liberty, or property, without due process of law,” and protects “the individual against arbitrary action of government.” We examine procedural due process questions in two steps: the first asks whether there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.

Kentucky Dep’t of Corrs. v. Thompson, 490 U.S. 454, 459-60, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (citations omitted). State due process requirements arise from Article I, section 9 of the Florida Constitution, which provides, “No person shall be deprived of life, liberty or property without due process of law....”

The right to pursue a career has been held to be a liberty interest protected by the Due Process Clause. See K.M.T. v. Dep’t of Health & Rehab. Servs., 608 So.2d 865, 869 (Fla. 1st DCA 1992) (citing Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); State ex rel. Fulton v. Ives, 123 Fla. 401, 167 So. 394, 399 (1936)); see also Cummings v. Missouri, 71 U.S. 277, 320, 327, 18 L.Ed. 356 (1867) (deeming disqualification from ordinary and regular vocations punishment); Lane v. Chiles, 698 So.2d 260, 264 (Fla.1997) (approving a lower court’s conclusion that a “state regulation violates a protected liberty interest if it completely interferes with the right to engage in a lawful occupation”); Polakoff v. Dep’t of Ins. & Treasurer, 551 So.2d 1223, 1225 (Fla. 1st DCA 1989) (stating that it is “well settled that ... the right to engage in a lawful business or occupation enjoys constitutional protection”). The decisions in Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) and Connecticut Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003) are not to the contrary, and are readily distinguishable from the present case.

The Smith court’s opinion noted the dearth of evidence that the Alaska law under consideration there “has led to substantial occupational ... disadvantages for former sexual offenders.” Smith, 123 S.Ct. at 1151. In stark contrast, the Florida Sexual Predators Act imposes substantial, lifetime occupational disabilities and disadvantages as a matter of law.

The law at issue in the Connecticut case mandated nothing more than dissemination of information already a matter of public record. The Connecticut law required, moreover, a disclaimer stating that there had been “no determination that any individual included in the registry is currently dangerous.” Connecticut Dep’t of Pub. Safety, 123 S.Ct. at 1163. Again in stark contrast, the Florida Legislature declared, as its rationale for prohibiting people in appellant’s situation from working where children regularly congregate, that they are “predators who present an extreme threat to the public safety.” Ch. 96-388, § 61, at 2367, Laws of Fla.

The Florida Constitution, no less than the federal constitution, protects the right to earn a livelihood in a lawful occupation. See generally Lane, 698 So.2d at 264 (approving rejection of the assertion that the net ban amendment deprived a challenger of a due process liberty interest, in part because the ban did not completely prevent fishermen from engaging in their chosen occupation); State ex rel. Hosack v. Yocum, 136 Fla. 246, 186 So. 448, 451 (1939) (“The fundamental right to earn a livelihood in pursuing some lawful occupation is protected by the Constitution, and in fact, many authorities hold that the preservation of such right is one of the inherent or inalienable rights protected by the Constitution.”); Ex parte Powell, 70 Fla. 363, 70 So. 392, 396-97 (1915) (upholding a statute imposing license taxes on seafood dealers and fishing boat owners because the statute reasonably regulated state waters and did “not purport to regulate or to deny to any one the right to labor”).

In addition to recognizing the general right to earn a livelihood, “various courts have specifically recognized the ability to pursue employment in the child care field as a constitutionally protected liberty interest.” Dupuy v. McDonald, 141 F.Supp.2d 1090, 1133 (N.D.Ill.2001). While the right to work in one’s chosen profession is not absolute, it cannot be taken away without due process of law.

Included in the right of personal liberty and the right to private property is the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment by which labor and other services are exchanged for money or other forms of property. If that right be stricken down or arbitrarily interfered with, there is a substantial impairment of liberty in the long-established constitutional sense....
While it is undoubtedly true that it is within the power of government to restrain some individuals from all contracts and all individuals from some contracts, the truth must not be ignored that a citizen’s right to pursue any lawful business is “property” and the right to contract for personal sendees as a means for the acquisition of property is one of the privileges of a citizen of the United States of which he cannot be deprived without invading his right to liberty....
It is within the power of the Legislature to regulate some occupations and not regulate others, but private rights secured by the Constitution must not be invaded and the regulations must operate with substantial fairness upon all persons similarly situated.

State ex rel. Fulton, 167 So. at 399. Unlike the Act at issue in the present case, the statute that specifically prescribes minimum standards for child care personnel, § 402.305(2)(a) & (b), Fla. Stat. (2002), would, while presumptively disqualifying appellant as a child care worker, allow exemption from disqualification if he could show

evidence of rehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, and the history of the employee since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed.

§ 435.07(3), Fla. Stat. (2002). See § 402.305(2)(b), Fla. Stat. (2002) (“The department may grant exemptions from disqualification from working with children or the developmentally disabled as provided in s. 435.07.”). The Act at issue here permits no exemptions from a much more severe disqualification.

No small part of the difficulty the present case poses arises from the fact that appellant was not on notice, when he entered his plea, that he would lose the right to work where children regularly congregate, even if he could show that he could do so without threatening the public safety. This circumstance distinguishes the present case from Milks v. State, 848 So.2d 1167 (Fla. 2d DCA 2003) and Freeland v. State, 832 So.2d 923 (Fla. 1st DCA 2002).

Ordinarily, not even non-penal statutes can divest citizens of substantive rights retroactively. See generally Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 312 n. 8, and 315-16, 65 S.Ct. 1137, 89 L.Ed. 1628 (1945); William Danzer & Co. v. Gulf & Ship Island R.R. Co., 268 U.S. 633, 637, 45 S.Ct. 612, 69 L.Ed. 1126 (1925); State Farm Mut. Auto. Ins. v. Laforet, 658 So.2d 55, 61 (Fla.1995). For this reason, it “is a well established rule of statutory construction that, in the absence of an express legislative statement to the contrary, an enactment that affects substantive rights or creates new obligations or liabilities is presumed to apply prospectively.” Hassen v. State Farm Mut. Auto. Ins. Co., 674 So.2d 106, 108 (Fla.1996). This presumption does not arise here, however, because the Legislature made clear its intention that the Act apply retrospectively (albeit only after appellant committed his offenses) when it made the Act applicable to offenses occurring “on or after October 1, 1993.” § 775.21(4)(a), Fla. Stat. (2000).

Because a liberty interest warranting due process protection exists, however, “the question is not whether the statutory scheme envisions making such an individualized assessment, but whether the Due Process Clause requires it.” Doe v. Williams, 167 F.Supp.2d 45, 59 (D.D.C.2001).

If the legislation clearly expresses an intent that it apply retroactively, then the second inquiry is whether retroactive application is constitutionally permissible. See State Farm Mut. Auto. Ins. v. Laforet, 658 So.2d 55, 61 (Fla.1995); State Dep’t of Transp. v. Knowles, 402 So.2d 1155, 1158 (Fla.1981); see also Arrow Air, Inc. v. Walsh, 645 So.2d 422, 425 n. 8 (Fla.1994).

Metro. Dade Co. v. Chase Fed. Hous. Corp., 737 So.2d 494, 499 (Fla.1999). At issue is whether the state and federal constitutions require an opportunity for appellant to make a showing, if he can, that his employment — perhaps as french fry cook, janitor, roofer or groundskeeper — would not pose a threat to public safety.

Appellant’s nolo contendere plea — which might, after all, have been a plea of convenience — to charges of misconduct alleged to have taken place six years ago should not deprive him of the opportunity “to show that he is not a danger to society ..., that he is married and a father, and that he is living a normal, productive life as a citizen of Florida.” Appellant’s Supplemental Brief 6-7. “It is difficult to believe that the Constitution grants greater protection from unfair retroactivity to property than to human liberty.” Stogner v. California, — U.S. —, —, 123 S.Ct. 2446, 2460-61, 156 L.Ed.2d 544 (2003). The state and federal due process clauses require that a person in appellant’s position have an opportunity to demonstrate that employment he might now otherwise lawfully undertake would pose no threat to public safety.

“The statute before us is unfairly retroactive as applied to” appellant. Id. at 2461. To the extent the Act deprives him of a whole spectrum of employment opportunities — and does so for life — without affording him a chance to show that he can safely be allowed to work, the Act is unconstitutional as state action that denies procedural due process guaranteed by both the state and federal constitutions.

      . On August 20, 1997, Appellant pleaded nolo contendere to attempted sexual batteiy by a person under eighteen years of age upon a person under twelve years of age, in violation of section 794.011(2), Florida Statutes, and lewd and lascivious assault upon a child less than sixteen years old, in violation of section 800.04, Florida Statutes. These crimes were alleged to have been committed in November 1996. The trial court withheld adjudication of guilt on each count and imposed concurrent five-year probationary sentences with a suspended county jail sentence of eleven months and fifteen days. On October 6, 2000, the State filed a motion seeking to qualify Appellant as a sexual predator pursuant to section 775.21, as amended on October 1, 1998.

      . Appellant was convicted of the qualifying offenses for purposes of the Florida Act; section § 775.21(2)(c), Florida Statutes (2000) defines conviction as "a determination of guilt which is the result of a trial or the entry of a plea of guilty or nolo contendere, regardless of whether adjudication is withheld.”

      . In his supplemental reply brief on the procedural due process claim, Appellant explicitly disavows raising any substantive due process claim.

      . At the time appellant allegedly committed the second degree felony offenses in violation of sections 794.01 l(2)(b) (attempted sexual battery by a person under eighteen years of age upon a person under twelve years of age) and 800.04 (lewd and lascivious assault upon a child less than sixteen years old), the Act did not apply to him because he had no previous conviction and the alleged felonies were not capital, life or first-degree.
      (c) For a current offense committed on or after October 1, 1996, upon conviction, an offender shall be designated as a "sexual predator” ... if:
      1 .... the felony is:
      a. A capital, life, or first degree felony violation of chapter 794 ... or
      b. Any second degree or greater felony violation of chapter 794, [or] s. 800.04 ... and the offender has previously been convicted of or found to have committed, or has pled nolo contendere or guilty to, regardless of adjudication, any violation of s. 794.011(2) ... [or] s. 800.04....
      § 775.21(4)(c), Fla. Stat. (Supp.1996). Effective October 1, 1998, the Legislature amended the statute to add a third category of qualifying crimes, if committed on or after October 1, 1996, viz.: "An attempt to commit a capital, life, or first-degree felony violation of chapter 794, where the victim is a minor, or a violation of a similar law of another jurisdiction.” Ch. 98-81, § 3, at 591, Laws of Fla. (codified as § 775.21(4)(c)l.b., Fla. Stat (Supp.1998)) (emphasis supplied).
      Chapter 98-81 broadened the reach of the statute so that appellant’s plea of nolo conten-dere to attempted sexual battery by a person under eighteen years of age upon a person under twelve years of age qualified him as a sexual predator. See § 794.01 l(2)(b), Fla. Stat. (1995).
      In addition, by the time the state sought his designation as a sexual predator, the Act had again been amended, Ch.2000-207, § 1, at 2052-53, Laws of Fla., this time to provide:
      (a) For a current offense committed on or after October 1, 1993, upon conviction, an offender shall be designated as a "sexual predator” ... if:
      1. The felony is:
      a. A capital, life, or first-degree felony violation, or any attempt thereof, of s. 787.01 or s. 787.02, where the victim is a minor and the defendant is not the victim's parent, or of chapter 794, s. 800.04, or s. 847.0145, or a violation of a similar law of another jurisdiction; or
      b. Any felony violation, or any attempt thereof, of ... s. 800.04. ...

      § 775.21(4)(a), Fla. Stat. (2000) (emphasis supplied). By the time appellant was designated a sexual predator, the amended statute made each of his alleged offenses (retroactively) qualifying.

      . The Legislature amended the original Act in 1996, Ch. 96-388, § 61, at 2368, Laws of Fla. (codified at § 775.21(3)(b)5., Fla. Stat. (Supp. 1996)), stating an intent to "[p]rohibit[] sexual predators from working with children, either for compensation or as a volunteer,” and providing:
      A sexual predator who has been convicted of or found to have committed, or has pled nolo contendere or guilty to, regardless of adjudication, any violation of s. 794.011(2), (3), (4), (5), or (8), s. 794.023, s. 800.04, s. 827.071, s. 847.0133, or s. 847.0145, or of a similar law of another jurisdiction, when the victim of the offense was a minor, and who works, whether for compensation or as a volunteer, at any business, school, day care center, park, playground, or other place where children regularly congregate, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
      Ch. 96-388, § 61, at 2374, Laws of Fla. (originally codified at § 775.2l(9)(b), Fla. Stat. (Supp.1996), now codified at § 775.21(10)(b), Fla. Stat. (2002)).

      . Appellant argued in his initial brief that the Act creates an unconstitutional, irrebuttable presumption that he is a public menace by automatically and irrevocably designating him a sexual predator without any inquiry as to whether or not he poses a danger to society in fact. In his supplemental brief, appellant argues that the Act violates procedural due process with more specificity.

      . Appellant proceeds on the explicit assumption that the Act is a civil, not a criminal, statute, and that “sexual predator designation is not a sentence or punishment, but is a regulatory act done for remedial purposes.” State v. Colley, 744 So.2d 1172, 1174 (Fla. 2d DCA 1999). See Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). Florida courts considering the issue had all seemingly concluded that sexual predator "designation is neither a sentence nor a punishment.” Kelly v. State, 795 So.2d 135, 138 (Fla. 5th DCA 2001). See Gonzalez v. State, 808 So.2d 1265, 1266 (Fla. 3d DCA 2002) (rejecting appellant's argument that the Florida Sexual Predators Act imposes punishment ex post facto); Rickman v. State, 714 So.2d 538, 539 (Fla. 5th DCA 1998) (same); Collie v. State, 710 So.2d 1000, 1009-11 (Fla. 2d DCA 1998) (same). For a discussion of the procedural consequences of this characterization, see Nicholson v. State, 846 So.2d 1217 (Fla. 5th DCA 2003).

      . In Espindola v. State, 855 So.2d 1281, 1289-91 (Fla. 3d DCA 2003), the Third District held that such an opportunity is constitutionally required, without regard to retro-activity. The Fourth District held to the contrary in Reyes v. State, 854 So.2d 816, 817 (Fla. 4th DCA 2003). See also White v. State, - So.2d -, -, 2003 WL 22399730, at *1 (Fla. 4th DCA Oct.22, 2003) (following Reyes); Luda v. State, 860 So.2d 457, 458, 2003 WL 22336133, at *1 (Fla. 4th DCA Oct. 15, 2003) (same); Jones v. State, 855 So.2d 715, 715 (Fla. 4th DCA 2003) (same); Carver v. State, 854 So.2d 272, 272 (Fla. 4th DCA 2003) (same).


author: PER CURIAM.

text:
    Jon R. BURROWS, Appellant, v. The SCHOOL BOARD OF OKALOOSA, Florida, Appellee.
    No. 1D02-4636.
    District Court of Appeal of Florida, First District.
    Nov. 25, 2003.
    Karen E. Wendzel and J. Michael Lin-dell of Lindell & Kellison, P.A., Jacksonville, for Appellant.
    Brian P. Knight and Mara Schlackman of Conroy, Simberg, Ganon, Krevans & Abel, P A., Hollywood, for Appellee.
   PER CURIAM.

Because disputed fact issues remain unresolved regarding whether appellant was a managerial or supervisory employee, the final summary judgment is REVERSED and the case is REMANDED for further proceedings.

ERVIN, BOOTH and KAHN, JJ., concur.


text:
    Tony J. HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-5135.
    District Court of Appeal of Florida, First District.
    Nov. 25, 2003.
    Nancy A. Daniels, Public Defender; P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The parties agree that the appellant would be entitled to discharge if the sheriffs office did not receive a warrant for his arrest for violation of probation prior to the conclusion of his probationary period. See, e.g., McNeal v. State, 741 So.2d 1205, 1206 (Fla. 1st DCA 1999). Appellant has neither supplemented the record on appeal to establish that the sheriffs office received the warrant after January 31, 1999, however, nor even alleged that the warrant was received after that date. Consequently, we are obligated to affirm. But our decision is without prejudice to the right of the appellant to present pursuant to Florida Rule of Criminal Procedure 3.850(a)(3) any claim that the court below lacked jurisdiction.

Affirmed.

ALLEN, DAVIS, and BENTON, JJ., concur.


text:
    Stephanie L. NICKOLAN-BARRON, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 1D03-0660.
    District Court of Appeal of Florida, First District.
    Nov. 25, 2003.
    Stephanie L. Nickolan-Barron, pro se, for Appellant.
    John D. Maher, Deputy General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

We hold that appellant’s facsimile transaction report, which indicates that appellant’s fax, i.e., her notice of appeal, was successfully transmitted to the Office of Appeals at the Agency for Workforce Innovation within the applicable time frame, constituted sufficient evidence that appellant timely faxed her notice of appeal. See Reynolds v. SV Cent. Dania Props., Inc., 849 So.2d 1181, 1182-83 (Fla. 4th DCA 2003); Espanioly v. Fla. Unemployment Appeals Comm’n, 768 So.2d 1230, 1230 (Fla. 3d DCA 2000); cf. Mendelsohn v. Fla. Unemployment Appeals Comm’n, 851 So.2d 208, 209 (Fla. 1st DCA 2003). Accordingly, we reverse the Unemployment Appeals Commission’s order affirming the appeals referee’s determination that the appeal was untimely and remand for further proceedings.

REVERSED and REMANDED for further proceedings.

BOOTH, BENTON and LEWIS, JJ., concur.


author: WOLF, C.J. ERVIN, J.,

text:
    DEPARTMENT OF REVENUE, Appellant, v. The CITY OF GAINESVILLE, Appellee.
    No. 1D02-1582.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2003.

      Charlie Crist, Attorney General; Nicholas Bykowsky and Mark T. Aliff, Assistant Attorneys General, Tallahassee, for Appellant.
    Kenneth R. Hart and Sean E. Fennelly of Ausley & McMullen, Tallahassee, for the Florida Telecommunications Industry Association as Amicus Curiae.
    Michele Santi and John C. Dent, Jr., of Dent & Cook, Sarasota, for Edward Cra-po, Alachua County Property Appraiser, as Amicus Curiae.
    Robert W. Pass and E. Kelly Bittick, Jr., of Carlton Fields, P.A., Tallahassee, for Appellee.
    James Bailer and Sean A. Stokes of The Bailer Herbst Law Group, P.C., Washington, D.C., and William J. Peebles, Tallahassee, for the Florida Municipal Electric Association as Amicus Curiae.
   WOLF, C.J.

The Department of Revenue (Department) appeals from a final summary judgment entered in a declaratory judgment suit filed by the City of Gainesville (City). The trial court declared facially unconstitutional section 2 of chapter 97-197, Laws of Florida, creating section 166.047, Telecommunications services, Florida Statutes, which imposes ad valorem taxes on property owned and used by a municipality to provide telecommunications services, because the statute contravened Article VII, Section 3(a) of the Florida Constitution. For the same reason, the trial court also declared facially invalid a portion of section 3 of chapter 97-197, Laws of Florida, which amended section 196.012, Definitions, Florida Statutes, to provide that a municipality’s provision of two-way telecommunications services to the public does not constitute an exempt use for ad valorem tax purposes unless the services complied with certain conditions therein specified. We affirm because we believe that the property in question is being used by the City for a municipal purpose and the legislature’s attempt to condition the provision of these municipal services on the payment of an amount equal to any ad valorem tax liability is in direct conflict with Article VII, Section 3(a) of the Florida Constitution.

The City, doing business under the fictitious name, Gainesville Regional Utilities (GRU), sells telecommunications infrastructure and integrated telecommunications services to its citizens, charging its customers contractually agreed-upon rates for the services provided. Pursuant to the terms of the challenged statute, property owned by the City and used for providing these telecommunication services is subject to ad valorem taxation.

Section 2 of chapter 97-197, Laws of Florida, created section 166.047, which provides in pertinent part,

Telecommunications services. — A telecommunications company that is a municipality or other entity of local government may obtain or hold a certificate required by chapter 364, and the obtaining or holding of said certificate serves a municipal or public purpose under the provision of s. 2(b), Art. VIII of the State Constitution, only if the municipality or other entity of local government:
(3) Notwithstanding any other provision of law, pays, on its telecommunications facilities used to provide two-way telecommunications services to the public for hire and for which a certificate is required pursuant to chapter 364, ad valorem taxes, or fees in amounts equal thereto, to any taxing jurisdiction in which the municipality or other entity of local government operates. Any entity of local government may pay and impose such ad valorem taxes or fees.

(emphasis supplied).

In section 3 of chapter 97-197, the legislature amended section 196.012(6), which sets out definitions for governmental, municipal, or public purposes or functions, by adding the following language:

Providing two-way telecommunications services to the public for hire by the use of a telecommunications facility, as defined in s. 364.02(13), and for which a certificate is required under chapter 364 does not constitute an exempt use for purposes of s. 196.199, unless the telecommunications services are provided by the operator of a public-use airport, as defined by s. 332.004, for the operator’s provision of telecommunications services for the airport or its tenants, concessionaires, or licensees, or unless the telecommunications services are provided by a public hospital. However, property that is being used to provide such telecommunications services on or before October 1, 1997, shall remain exempt, but such exemption expires October 1, 2004.

These sections directly conflict with Article VII, Section 3(a), Florida Constitution, providing an exemption from ad valorem taxation for municipal property used by the municipality for a municipal purpose. Article VII, Section 3(a) states,

All property owned by a municipality and used exclusively by it for municipal or public purposes shall be exempt from taxation. A municipality, owning property outside the municipality, may be required by general law to make payment to the taxing unit in which the property is located. Such portions of property as are used predominantly for educational, literary, scientific, religious or charitable purposes may be exempted by general law from taxation.

In City of Sarasota v. Mikos, 374 So.2d 458 (Fla.1979), the supreme court declared that this provision of the constitution is self executing:

A reading of section 3(a) of article VII clearly establishes that it is a self-executing provision and therefore does not require statutory implementation. The change in the language of chapter 196 is irrelevant because although a statute may grant additional exemptions, it may not repeal the exemptions granted municipalities by the constitution.

Id. at 460. Thus, if municipality-owned property is being used by the municipality for a public purpose, the legislature may not remove the exemption. Yet, that is precisely the purpose of section 166.047. The legislative staff analysis of chapter 97-197 states the purpose of the act: to “remove the exemption that municipalities, counties, or other entities of local government have for ad valorem taxes on real property used for the purpose of providing telecommunication services to the public.” Fla. H.R. Comm. on Utils, and Communications, HB 313 (March 5, 1997) Staff Analysis (on file with Comm.). The only issue before us is whether this property which is owned by the City is being used for a municipal purpose.

The provision of utility type services has always been considered to be a tax exempt municipal purpose. Ford v. Orlando Utils. Comm’n, 629 So.2d 845 (Fla.1994). Relying on language contained in Sebring Airport Auth. v. McIntyre, 783 So.2d 238 (Fla.2001), appellant and the dissent argue, however, that we should define municipal purpose narrowly. Appellant has not cited any case which supports the proposition that when property is owned and used by a municipality the term “municipal purpose” as used in Article VII, Section 3(a), Florida Constitution, should be narrowly construed. McIntyre and other cases cited for adopting a narrow interpretation involve situations where municipal property is being leased or utilized by a private entity. In Williams v. Jones, 326 So.2d 425, 432 (Fla.1975), a case where a municipality leased municipal property, the court stated that one person operating a commercial establishment for profit should not have an advantage over another commercial establishment also operating for purely proprietary purposes just because one is located on governmental property. The same policy considerations do not apply where the property is being owned and operated by the municipality itself, in which case the focus of the municipality is the provision of service to its citizens. See, e.g. City of Boca Raton v. Gidman, 440 So.2d 1277 (Fla.1983). In-fact, we are unaware of any public policy reason when property is owned and operated by a municipality that the term “municipal purpose” should not be given its generally accepted meaning in accordance with Article VIII, Section 2(b), Florida Constitution. The Fifth District’s opinion in Crotty, 775 So.2d at 978, and the opinion of this court in Page v. Fernandina Beach, 714 So.2d 1070 (Fla. 1st DCA 1998), support such a uniform construction. The Crotty court noted,

[T]he constitution exempts from taxation property owned by a municipality and used exclusively by it for municipal or public purposes. The term “municipal purpose” has been defined as encompassing all activities essential to the health, morals, protection and welfare of the municipality. State v. City of Jacksonville, 50 So.2d 532, 535 (Fla.1951). “Municipal functions” are those created or granted for the special benefit and advantage of the urban community embraced within the corporate boundaries. Chardkoff Junk Company v. City of Tampa, 102 Fla. 501, 135 So. 457 (1931). See also State ex rel. Harper v. McDavid, 145 Fla. 605, 200 So. 100 (1941); City of Winter Park, 448 So.2d at 1244. Our courts have ruled that municipal functions include functions which specifically and peculiarly promote the comfort, convenience, safety and happiness of the citizens of the municipality rather than the welfare of the general public.

Crotty, 775 So.2d at 980-981 (emphasis in original).

In Page v. Fernandina Beach, we specifically noted that city owned and operated (as opposed to leased out) property was exempt from taxation under a broad construction of “municipal purpose:”

Municipal operation of a marina is a legitimate municipal corporate undertaking for the comfort, convenience, safety, and happiness of the municipality’s citizens. Indeed, the uncontradicted expert testimony was that operation of this marina constituted a proper municipal or public function. When a city operates a marina it owns, marina property it has not leased to a nongovernmental entity is exempt from ad valorem taxation.... But operating a marina partakes of no aspect of sovereignty and does not warrant an exemption for a marina leased to a nongovernmental operator seeking profits.

Page, 714 So.2d at 1076-1077.

Indeed, the provision of telecommunication services for the benefit of city residents constitutes a valid municipal purpose pursuant to any reasonable interpretation of the term “municipal purpose.” The best evidence in this regard is the statute itself which recognizes that political subdivisions within the state may be issued certificates by the Public Service Commission to act as a telecommunications provider. See § 364.02(13), Fla. Stat.

In addition, as recognized by the trial court, there is a long history in Florida and elsewhere in this country of local governments providing utility services. In discussing the provision of telecommunications services, the trial court stated,

While the provision of telecommunications services may also partake of “no aspect of sovereignty,” it is no less “a legitimate municipal corporate undertaking for the comfort, convenience, safety, and happiness of the municipality’s citizens” than a marina. Indeed, if anything, it is more analogous to such services as electricity and water, long recognized as serving valid municipal and public purposes. See Ford v. Orlando Utilities Comm’n, 629 So.2d 845 (Fla.1994) (property used in furnishing electricity is used for valid municipal purpose and exempt from tax under the Florida Constitution); Schultz v. Crystal River Three Participants, 686 So.2d 1391 (Fla. 5th DCA 1997) (interest of municipalities in private power plant was tax exempt); Orlando Utilities Comm’n v. Milligan, 229 So.2d 262 (Fla. 4th DCA 1969) (furnishing of electricity, power, and water was municipal purpose under Florida’s 1885 Constitution.)

(footnote omitted).

Indeed, the provisions of telecommunication services are still regulated by the Public Service Commission just like water, sewer, and electricity. See Chs. 362, 366, and 367, Fla. Stat. Telecommunication providers like utilities provide essential public services.

Telegraph and telephone companies as ordinarily operated are categorized as “public service corporations,” and in legal phraseology as “quasi-public corporations” or “corporations affected with a public interest.” They are important agencies and instrumentalities of commerce, in constant use in conducting both governmental and private affairs of the country, so that the public clearly has an interest in such business. The property employed, as well as the proceeds of the business, belongs to the company, but such property is used and the business conducted for the accommodation and convenience of the public.

74 Am.Jur.2d Telecommunications § 2 (2003) (footnotes omitted).

In City of Gainesville v. State Dep’t of Transp., 778 So.2d 519, 523 (Fla. 1st DCA 2001), this court recognized the power of the city to provide the utility services enumerated in chapter 90-394, section 1, Laws of Florida, and the implicit power to operate and maintain the necessary facilities to provide such services. Included among such utilities are the telecommunication services of telephone and telegraph. Ch. 90-394, § 1, at 23, Laws of Fla. (amending the charter of the City of Gainesville). The dissent argues that because competition exists in the telecommunications market somehow the provision of these services no longer constitutes a municipal purpose. In analyzing whether a provision of services constitutes a municipal purpose pursuant to Article VII, Section 3(a), the focus is whether the function promotes comfort, convenience, safety, and happiness of the citizens of the municipality. See Crotty 775 So.2d at 980; Page 714 So.2d at 1076. Utilities such as telecommunication providers are treated differently in part because of the essential nature of the service they provide. The services they provide become no less important to the citizens regardless of whether they may be provided in a competitive market.

We also find that the argument that the provisions of the act merely outline a condition for the provision of telecommunication services is unpersuasive. By requiring the payment of ad valorem taxes on property that would otherwise be exempt, as a condition of obtaining and holding a certificate under chapter 364, the legislature has attempted to indirectly achieve its desire purpose — taxation of municipal telecommunications property — when it could not do so directly.

“It is fundamental and elementary that the legislature may not do that by indirect action which it is prohibited by the Constitution to do by direct action.” Lewis v. Fla. Bar, 372 So.2d 1121, 1122 (Fla.1979) (finding attempt to impose documentary stamp tax on transaction between Florida Bar and bank, which tax would be passed on to Bar, constituted an attempt to impose an indirect tax on an immune governmental body); Dep’t of Revenue v. Fla. Boaters Ass’n, 409 So.2d 17 (Fla.1981) (holding statute attempting to define the term “boat” for purposes of tax exemption was unconstitutional where it failed to provide a reasonable definition of that term, but simply constituted a decree that certain uses of boats would render them subject to ad valorem taxation, contrary to constitutional exemption).

The legislature cannot circumvent the constitutional language contained in Article VII, Section 3(a) of the Florida Constitution, concerning exemptions of municipal property operated by the municipality for a public purpose.

The decision of the trial court is affirmed.

BENTON, J., Concurs; ERVIN, J., Dissents with opinion.

ERVIN, J.,

dissenting.

In my judgment, the provisions of chapter 97-197, Laws of Florida, creating section 166.047, Florida Statutes, are a proper exercise of the legislature’s discretion to classify real property for ad valorem taxation. I would therefore reverse the lower court in such regard. After some deliberation, it is my opinion that the provision of telecommunications services by a municipality to its citizens for hire is a governmental-proprietary function which is not exempt from taxation under Article VII, section 3(a) of the Florida Constitution. The interest is taxable, in my judgment, whether a city simply leases the property to a commercial establishment, or both owns and operates the service, as here.

In reaching my conclusion, I consider it helpful to recite some of the pertinent legislative history leading to the statute’s enactment. Municipalities have only recently been statutorily authorized to compete with commercial telecommunication providers, which formerly dominated the marketplace. In 1996, the United States Congress enacted the Telecommunications Act of 1996, 47 U.S.C.A. § 151, et seq. (1996). One of the stated purposes of the Act was to facilitate the deregulation of telecommunication providers in order to create a competitive marketplace for telecommunications service. The Florida Legislature had earlier enacted chapter 95-403, Laws of Florida, which found that the competitive provision of telecommunications service is in the public interest and that the transition from the monopoly provision of such services to a fair and competitive marketplace should be encouraged and facilitated. See ch. 95-403, § 5, at 3316-17, Laws of Fla. As a result of these statutory changes, new providers of telecommunications services, including municipalities, entered the marketplace, and they were permitted to offer such services upon obtaining a certificate from the Florida Public Service Commission.

Pursuant to the statutory authorization granted to municipalities to so operate, the City of Gainesville, doing business under the fictitious name, Gainesville Regional Utilities (GRU), began selling telecommunications infrastructure and integrated telecommunications services to the general public, charging its customers contractually agreed-upon rates for the services provided. The City’s utility has approximately thirty leases with seven wireless telephone companies on thirteen city towers that it either owns or manages in and around the city. The companies utilize GRU’s fiber-optic network to carry their signals from their tower locations to the local points of interexchange carriers or directly to their telecommunications switches.

In light of these legislative changes, chapter 97-197, Laws of Florida, was enacted to ensure that municipalities would not be given a competitive advantage over private telecommunication providers, whose property has traditionally been subject to ad valorem taxation, by requiring the property of municipalities to share also in the tax burden, whether or not leased by them to commercial establishments or operated by the cities themselves.

In seeking a declaration below that section 166.047 and the amendment to section 196.012(6) facially conflict with Article VII, section 3(a) of the Florida Constitution, the City took the position that all of its telecommunications property is absolutely exempt from ad valorem taxation, because the constitutional exemption is self-executing and cannot be waived, modified or impaired by the Florida Legislature. The Department answered, asserting that the purpose of the legislation was to ensure that the portion of the City’s telecommunications system which provides services to the public “for hire” is on an equal footing with existing telecommunications service providers, insofar as it relates to the payment of ad valorem taxes. At the hearing on summary judgment, the Department argued that the real issue before the court was whether the legislature could define what is the public purpose in the context of the statutes, as well as the context of article VII, section 3(a). As stated, the lower court held the challenged statutory provisions were facially unconstitutional, thereby rejecting the Department’s argument that the measures were a proper exercise of legislative prerogative in classifying property for taxation purposes by not allowing municipalities an economic advantage over competing commercial providers. I cannot agree.

My conclusion is supported by a plain reading of article VII, section (3)(a), which provides in pertinent part: “All property owned by a municipality and used exclusively by it for municipal or public purposes shall be exempt from taxation.” Nothing in this provision remotely supports the trial court’s conclusion that so long as the property is itself owned by a municipality, the type of use made of it is immaterial to a determination of its tax-exempt status. The constitutional language clearly requires the use be for a public or municipal purpose before it qualifies for the exemption. Unfortunately, subsection (3) does not provide a definition of such purpose; nevertheless, I believe it entirely unlikely that the supreme court intended the governmental-proprietary classification, discussed in pertinent Florida Supreme Court decisions, should be limited to only leasehold interests of gov-ernmentally owned property. To explain my position more clearly, a short history of applicable legal events leading up to and following the adoption of subsection (3) is helpful, in that these events demonstrate that the constitutional provision was not designed to furnish a broad exemption from taxation, as the majority and the court below have construed it, but rather to tighten the liberal construction that had previously been placed on the public-purpose exemption.

As the supreme court observed in Williams v. Jones, 326 So.2d 425, 433 (Fla.1975), at common law, a leasehold interest in real property was treated as personal property rather than realty; therefore, it was not subject to ad valorem taxation, as was real property. This disparity in taxation treatment was brought to the attention of the supreme court in Park-N-Shop, Inc. v. Sparkman, 99 So.2d 571 (Fla.1957), where appellant argued that the taxation of a lease of governmentally owned property conveyed to persons for a commercial use was necessary as a means of equalizing the competitive positions between business property owners that were required to pay taxes and business lessees of governmentally owned property that were not. Thus, although the various businesses were using the same county and city services, the property owners were required to shoulder the tax burden of the lessees’ businesses; consequently, the lessees enjoyed an unfair economic advantage. While holding that the leased property used for commercial purposes was immune from taxation, the Sparkman court nonetheless observed that it was “not conscious of any reason why the legislature could not set up machinery for that purpose.” Id. at 574.

Four years thereafter, the 1961 Florida Legislature acted on the court’s invitation and created section 192.62(1), Florida Statutes (1961), authorizing ad valorem taxation of leasehold interests in governmen-tally owned property used “in connection with a profit making venture.” The Florida Supreme Court was subsequently asked to decide whether municipally owned property leased to a commercial establishment served a public purpose, as had been expressed in a special act created by the 1955 legislature. Daytona Beach Racing & Recreational Facilities Dist. v. Paul, 179 So.2d 349 (Fla.1965). The City of Day-tona Beach had leased 374 acres of city-owned property to the Daytona Beach Racing and Recreational Facilities District, which in turn subleased the property to the privately owned Daytona International Speedway Corporation. When the Volusia County Tax Appraiser assessed the leased property for ad valorem taxes, the District, the City, and the corporation sued to enjoin the collection of the tax. The Florida Supreme Court decided that the exemption should be allowed, reasoning that the Speedway’s contribution to the economic, commercial, and community development of the Daytona Beach area served a public purpose, and in such context, a public purpose was equivalent to a municipal purpose. Id. at 353, 355.

Because the legislative will to tax commercial activities on governmentally owned leaseholds had been judicially thwarted, the 1968 Constitutional Revision Commission drafted several pertinent provisions which were designed to tighten the definition of a municipal or public purpose, thereby radically restricting the allowable exemptions for ad valorem taxes. The Commission deleted Article IX, section 1 of the 1885 Constitution, which excepted from taxation “such property as may be exempted by law for municipal, literary, scientific, religious or charitable purpose,” as well as article XVT, section 16, which provided that “the property of all corporations ... shall be subject to taxation unless such property be held and used exclusively for religious, scientific, municipal, educational, literary or charitable purposes.” Central to the framers’ reform of ad valorem property taxation was the creation of article VII, section 3(a). It is important to understand what the new constitutional provision contemplated. As one commentator explains:

The municipal purpose exemption is unique. Unlike other “use” exemptions authorized in the constitution, it is mandatory and self-executing; it prescribes the identity of the owner and requires exclusive (rather than predominant) use by such owner for the specified exempt purpose; and (unlike other governmental purpose exemptions), it is expressly contemplated in the constitution. It does not depend on judicial creation of an “immunity” doctrine.

Robert S. Goldman, Exemptions, in 2 Fla. State & Local Taxes, ¶ 5.03[4], at 215 (Benjamin K. Phipps, ed., The Florida Bar 1984).

Another commentator outlines the three conditions that must be satisfied before one may qualify for the subsection (3) exemption:

In order to qualify for the constitutional mandatory municipal exemption, property must (1) be owned by a municipality and (2) be used exclusively by the municipality for either municipal or public purposes and (3) be within the municipality.

Talbot “Sandy” D’Alemberte, Commentary, 26 Fla. Stat. Ann. 397 (West 1995) (emphasis added). Unlike article XVI, section 16, which required that the property, in order to be exempt from taxation, be held and used exclusively for certain specified purposes, article VII, section 3(a) also explicitly requires the municipality to own the property.

Acting on the constitutional changes, the 1971 Florida Legislature adopted massive reforms to chapters 192 and 196 of the Florida Statutes. Among other things, it created a statute stating that all leasehold interests in governmental property were taxable unless exempted by law. See § 196.001, Fla. Stat. (1971). The one express exemption allowed for leaseholds was “only when the lessee serves or performs a governmental, municipal, or public purpose or function.” § 196.199(2)(a), Fla. Stat. (1971). A governmental, municipal, or public purpose or function was defined as a use which 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.” § 196.012(5), Fla. Stat. (1971).

Against this historical backdrop, the Florida Supreme Court has decided a number of cases relating to the issue of whether leaseholds of governmentally owned property were entitled to the constitutional exemption based upon the uses made of the leases. Beginning with Straughn v. Camp, 293 So.2d 689 (Fla.1974), and continuing most recently with Sebring Airport Authority v. McIntyre, 783 So.2d 238 (Fla.2001), the court has consistently refused to hold leaseholds used for a commercial purpose exempt from ad valorem taxation. The language of the court in Williams v. Jones, 326 So.2d 425 (Fla.1975), is particularly instructive. There, commercial and residential lessees of publicly owned property on Santa Rosa Island filed suits against the county appraiser, challenging assessment of their leaseholds for ad valorem tax purposes, contending that their property was exempt from ad valorem taxation because the operation of such facilities constituted a governmental, public purpose or function exempt pursuant to section 196.012(5), Florida Statutes. In rejecting the lessees’ arguments, the supreme court stated:

The operation of the commercial establishments represented by appellants’ cases is purely proprietary and for profit. They are not governmental functions. If such a commercial establishment operated for profit on Panama City Beach, Miami Beach, Daytona Beach, or St. Petersburg Beach is not exempt from tax, then why should such an establishment operated for profit on Santa Rosa Island Beach be exempt? No rational basis exists for such a distinction. The 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. Thus all privately used property bears a tax burden in some manner and this is what the Constitution mandates.

Williams, 326 So.2d at 433 (emphasis added).

It is important to note that the court in Williams focused its attention on the use for which the property was made, not the fact of public ownership. Other language in Williams is also helpful to the resolution of the issue before us. The court cautioned that the revisions of article VII, section 3(a) should not be considered in isolation from those of other pertinent provisions, particularly article VII, section 2, requiring that all ad valorem taxes be at a uniform rate within each taxing unit, subject to certain exceptions. Because of the various classifications created by statutes enacted pursuant to the constitutional revisions of 1968, lessees of publicly owned lands were required to bear their fair share of the tax burden, thereby placing them on a parity with other real property in the private sector devoted to similar uses. Id. at 430. The court concluded its analysis of the correlation between the applicable constitutional and statutory provisions with the following comment: “The Legislature clearly has the power to classify so that all property devoted to private use is treated on a parity and, therefore, there is an equitable distribution of the tax burden.” Id. at 432 (emphasis added).

As the court intimated in Williams, article VII, section 3(a) and article VII, section 2 are simply parts of the total legal framework placed under the Finance and Taxation Article of the Florida Constitution, and are designed to narrow the occasions under which an exemption would be permitted. Other provisions include article VII, section 4, which provides in part: “By general law regulations shall be prescribed which shall secure a just valuation of all property for ad valorem taxation!.]” These provisions, taken together, may be considered emblematic of the long-recognized judicial dictum that “the Florida Constitution requires that all property used for private purposes bear its just share of the tax burden for the support of local government and education, with certain exceptions specifically enumerated in the constitution.” Am Fi Inv. Corp. v. Kinney, 360 So.2d 415, 416 (Fla.1978).

Indeed, the pertinent constitutional provisions should be understood in the context of another well-established rule that tax exemptions, being in the nature of special privileges, are strictly construed against the claimant and in favor of the taxing power. See State v. Inter-American Ctr. Auth., 84 So.2d 9 (Fla.1955). As the Florida Supreme Court observed in State ex rel. Miller v. Doss, 146 Fla. 752, 2 So.2d 303, 304 (1941): “Exemptions from taxation are special favors frowned upon by the courts. They invariably cast a greater burden on other taxpayers. Statutes granting exemptions should be strictly construed.” (Emphasis added.)

Therefore, if the constitutional framers’ goal was truly to place all property on a parity with other property similarly situated by restricting the requirements permitting exemptions, it appears to me that the only real question pertinent to the issue of whether governmentally owned property should be exempt from taxation is the use made of it. In my judgment, the use by a municipality of telecommunications service to the public for hire, in competition with private commercial establishments, can by no stretch of the imagination be deemed in furtherance of a governmental function, i.e., those functions that concern the administration of some phase of government. See Sebring Airport Auth. v. McIntyre, 642 So.2d 1072, 1074 n. 1 (Fla.1994). And, more to the point, the organic law, as expressed in the applicable provisions of the Florida Constitution, does not explicitly restrict the legislature from determining that a use of municipal property, which would be considered proprietary if leased, may appropriately be classified for taxation purposes, notwithstanding that the use is itself conducted by a city.

In reaching its decision, the lower court appears not to have considered that the intent behind the applicable constitutional and statutory provisions was to restrict the range of the public-purpose exemption, not to enlarge it. For example, the court explained in its final summary judgment that the “scope of ‘municipal’ or ‘public’ purposes is broad under the Constitution,” and relates to “anything that promotes the health, safety, protection or welfare of the citizens of the municipality.” In so concluding, the court has apparently lumped the provisions of article VII, section 3(a), with article VIII, section 2(b). The latter subsection grants municipalities broad “corporate and proprietary powers to enable them to conduct municipal government” and authorizes them to “exercise any power for municipal purposes except as otherwise provided by law.”

The term “municipal purpose,” used in article VII, section 3(a), is not coextensive with the same term, as used in article VIII, section 2. The Florida Supreme Court warned against a comparable misconstruction in Sebring Airport Authority v. McIntyre, 783 So.2d 238 (Fla.2001), where the court rejected an argument by a commercial lessee asserting that essentially the same test should be applied to the term “public purpose” in deciding the tax-exempt status of a lease as had been applied in bond validation cases. The court made the following significant comments:

[I]n bond validation cases, a shift in the ad valorem tax burden to other taxpayers is not anticipated. In tax exemption cases, in contrast, any newly-created tax exemption necessarily involves a direct shift in tax burden from the exempt property to other, non-exempt properties.
It is perhaps both confusing and unfortunate, then, that the same term— “public purpose” — has traditionally been used in both of these analytical contexts. At least in tax exemption cases, however, it has been clearly established that the “governmental-governmental” public purpose standard governs.

Id. at 250-51 (footnotes omitted).

Similarly, the broad charter powers given to municipalities to conduct the performance of governance are in no way analogous to the municipal purpose standard provided in article VII, section 3(a), authorizing a narrow, self-executing exemption. The expressed constitutional purposes are clearly dissimilar, and that provided in article VIII affords no support to the City’s argument for an exemption.

The lower court also determined that the City’s provision of telecommunications service was no less a municipal purpose than that involving the operation of a public utility which furnishes electrical and water service to its citizens, and relied on case law that recognized it as such. See Ford v. Orlando Utils. Comm’n, 629 So.2d 845 (Fla.1994). I do not, however, consider a city’s provision of such service analogous to that of telecommunications service. What the court below failed to take into consideration is the fact that municipally owned power utilities continue to enjoy the benefits of legally protected monopolies within their territorial limits. See § 366.11, Fla. Stat. (2002); Storey v. Mayo, 217 So.2d 304, 307 (Fla.1968).

In holding the statute unconstitutional, the lower court also relied on this court’s opinion in Page v. City of Fernandina Beach, 714 So.2d 1070 (Fla. 1st DCA 1998), for its conclusion that a governmental-proprietary analysis is applicable only if municipal property is leased to private establishments for profit-making activities, and has no relevance regarding property that is used by the municipality. Although there is language in Page that supports the trial court’s decision, I consider that such statements are dicta, and as such have no precedential effect. The comments in Page, alluded to in the majority’s opinion, were made in the context of whether leases of municipally owned marina property, operated during the applicable tax years by private entities, were entitled to an exemption from ad valorem taxes. The majority held they were not, because the use made of the property was clearly proprietary.

It is true that while Page affirmed part of the trial court’s final judgment which held the City’s operation of a beach concession was exempt, it is not clear from the opinion whether the court considered that the use was for a governmental-governmental purpose, as defined in the pertinent Florida Supreme Court decisions. For example, the court described the activities carried out in the structure as including the operation of an office for City-employed lifeguards, showers, a storage area, and restrooms. Id., at 1076. In that it is impossible to determine from the opinion whether Page decided the property was exempt because the use of the marina was for a governmental purpose, rather than that at the time of the tax assessment the property was simply not leased to a for-profit entity, I do not consider the language in Page, indicating that the use of municipally operated property is immaterial in deciding such property’s tax-exempt status, to control the issue presented in this appeal.

Because it is unclear from some of the broad language used in the pertinent Florida Supreme Court decisions above discussed whether the court intended to limit their effect only to municipally owned property leased to private entities that conducted activities thereon for proprietary purposes, I would certify to the Florida Supreme Court the following questions to be of great public importance:

1. IS THE ANALYSIS OF THE FLORIDA SUPREME COURT, AS USED IN WILLIAMS v. JONES, 326 So.2d 425 (Fla.1975), AND OTHER PERTINENT DECISIONS PERTAINING TO A GOVERNMENTAL-PROPRIETARY USE OF PROPERTY OWNED BY THE PUBLIC ENTITY, BUT LEASED BY IT TO A PRIVATE COMMERCIAL ENTITY, APPLICABLE IN REGARD TO STATUTES THAT SUBJECT AD VALOREM TAXES ON PROPERTY BOTH OWNED AND OPERATED BY A MUNICIPALITY?
2. IF THE USE IS PROPERLY DETERMINED GOVERNMENTAL-PROPRIETARY, WOULD THE PROPERTY STILL BE EXEMPT FROM AD VALOREM TAXATION UNDER ARTICLE VII, SECTION 3(A) OF THE FLORIDA CONSTITUTION, BY REASON OF THE MUNICIPALITY’S OWNERSHIP AND OPERATION OF A TELECOMMUNICATIONS SERVICE, THEREBY RENDERING STATUTES SEEKING TO IMPOSE TAXES UPON SUCH PROPERTY VIOLATIVE OF THE CONSTITUTIONAL PROVISION?

For all of the above reasons, I would reverse the summary judgment and hold the statutes in question constitutionally valid.

      . The Department also complains that the trial court erred in declaring the statutes facially unconstitutional because, in so doing, it incorrectly applied the legal standard for an "as applied” challenge. Among other things, it argues that the correct standard to be used in determining whether a statute is facially constitutional is if it could be constitutionally applied to any hypothetical set of factual circumstances. See State v. Bales, 343 So.2d 9 (Fla.1977). The Department posits that there are a number of circumstances under which the act could be constitutionally applied, such as when a city owns and operates telecommunications property outside the county in competition with private companies, or when such property is leased for a proprietary purpose, rather than owned.
      In our judgment, the statutes do not on their face reasonably imply any permissible circumstances that would allow them to survive a facial constitutional challenge. Section 166.047(3) mandates that each municipality shall pay "on its telecommunications facilities ... ad valorem taxes ... to any taxing jurisdiction in which the municipality ... operates.” In comparing this broad, all-inclusive language with that in article VII, section 3(a), requiring that all property owned by a municipality and used by it exclusively for a public purpose be exempt from taxes, the argued hypothetical scenarios that would facially validate the enactments are simply not apparent. It is true that the second sentence of article VII, section 3(a) authorizes the legislature to carve out one specific class of municipal property that can be taxed, i.e., "property outside the municipality”; nevertheless, the constitutional language does not contemplate that the legislature may lump together that which it forbids and that which it permits. It is rather the legislature’s obligation to draft a law that generally tracks the constitutionally drawn line between property inside a municipality’s boundaries and property outside them.

      . Inquiry into whether property is being used for a municipal purpose is necessary because municipal property is only exempt from taxation, whereas county and state properties enjoy immunity from taxation. See Canaveral Port Auth. v. Dep’t of Revenue, 690 So.2d 1226 (Fla.1996).

      . Appellant relies heavily on the case of Greater Orlando Aviation Auth. v. Crotty, 775 So.2d 978 (Fla. 5th DCA 2000), in which the court found that the operation of a hotel on airport property owned by the city and which was not subject to a lease was subject to ad valorem taxes. Crotty is factually distinguishable from the instant case for a number of reasons. Most importantly, the municipal property was a hotel being operated by a private entity, the Hyatt Corporation, pursuant to an agreement specifically requiring Hyatt to maximize profits. Id. at 980. In the instant case the telecommunications system is operated and managed by the city. Further, the purpose of the hotel in Crotty was not to serve citizens of Orlando but to “serve persons who reside elsewhere and therefore require public accommodations.” Crotty at 981. In the instant case the telecommunications services are provided for the benefit of the citizens of Gainesville. Based on the foregoing, Crotty does not address the situation we have before us where municipally owned property is being used by the municipality for the benefit of its own citizens.

      . In fact in cases where a government itself is acting purely for the purpose of making profit there may be no legitimate municipal purpose. See State v. City of Orlando, 576 So.2d 1315 (Fla.1991).

      . The condition that the legislature attempts to place on the provision of telecommunication services — the payment of an amount that equates to ad valorem tax liability — does not negate the fact that the provision of such services constitutes a valid municipal purpose under the constitution.

      . In addition, telecommunication services were specifically included in the public service tax assessed by municipalities. See Ch. 98-277, Laws of Fla.

      . This provision now appears in subsection (6). § 196.012(6), Fla. Stat. (2002). The definition does not explicitly exclude profit-making, commercial enterprises, nor does it express the broader governmental-governmental/governmental-proprietary dichotomy announced by the Florida Supreme Court in Williams v. Jones, 326 So.2d 425, 433 (Fla.1975), discussed infra.

      . The above quoted activities have been defined by the Florida Supreme Court as proprietary functions. See McIntyre, 642 So.2d at 1074 n. 1.