GARY W. JOINER, SUCCESSOR TO MIKE WELLS v. PINELLAS COUNTY, FLORIDA ( 2019 )


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  •        IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA
    September 25, 2019
    GARY JOINER, successor to                 )
    MIKE WELLS, Pasco County                  )
    Property Appraiser,                       )
    )
    Appellant,                 )
    )
    v.                                        )             Case No. 2D17-1040
    )
    PINELLAS COUNTY, FLORIDA,                 )
    and MIKE FASANO, as Pasco                 )
    County Tax Collector,                     )
    )
    Appellees.                 )
    )
    BY ORDER OF THE COURT.
    Appellee, Pinellas County, Florida, has filed an "Alternative Motion for Rehearing,
    Rehearing En Banc, for Certification to the Supreme Court of Florida as an Issue of
    Great Public Importance, or for Clarification." We deny Appellee's requests for
    rehearing and rehearing en banc but grant the motions for clarification and certification.
    The prior opinion dated May 3, 2019, is accordingly withdrawn, and the attached opinion
    is issued in its place.
    No further motions for rehearing will be entertained.
    I HEREBY CERTIFY THE FOREGOING IS A TRUE
    COPY OF THE ORIGINAL COURT ORDER.
    MARY ELIZABETH KUENZEL, CLERK
    IN THE DISTRICT COURT OF APPEAL
    OF FLORIDA
    SECOND DISTRICT
    GARY JOINER, successor to                 )
    MIKE WELLS, Pasco County                  )
    Property Appraiser,                       )
    )
    Appellant,                   )
    )
    v.                                        )         Case No. 2D17-1040
    )
    PINELLAS COUNTY, FLORIDA,                 )
    and MIKE FASANO, as Pasco                 )
    County Tax Collector,                     )
    )
    Appellees.                   )
    )
    Opinion filed September 25, 2019.
    Appeal from the Circuit Court for Pasco
    County; Linda Babb, Judge.
    Loren E. Levy of The Levy Law Firm,
    Tallahassee, for Appellant.
    Yvette Acosta MacMillan, Senior
    Assistant County Attorney, Clearwater,
    for Appellee Pinellas County, Florida,
    a political subdivision of the State of
    Florida.
    Frederick T. Reeves of Frederick T.
    Reeves P.A., New Port Richey, for
    Appellee Mike Fasano, as Pasco
    County Tax Collector.
    ATKINSON, Judge.
    The Pasco County Property Appraiser (Pasco Property Appraiser) appeals
    the entry of final summary judgment in favor of Pinellas County declaring the 12,400
    acres of property it owns within Pasco County immune from ad valorem taxation. This
    case presents an issue of first impression: whether a county's immunity from taxation
    extends extraterritorially to property that it owns in another county. We conclude that it
    does not and reverse.
    The 12,400 acres of real property, located entirely within Pasco County,
    consists of thirty-six parcels of land, collectively known as the Cross Bar Ranch and the
    A1 Bar Ranch (collectively, the Property). Pinellas County has paid ad valorem taxes
    on the Property since its acquisition in 1976 and 1989.1
    In January 2014, a certified public accountant employed by the Division of
    Inspector General for the Pinellas County Clerk and Comptroller conducted an updated
    audit that suggested that some or all of the parcels of the Property may be exempt from
    taxation. In May 2015, Pinellas County filed suit against the Pasco Property Appraiser
    seeking declaratory and injunctive relief concerning Pinellas County's immunity from
    paying ad valorem taxes on the Property and reimbursement for Pinellas County's
    payments for 2014 through 2016. The parties filed cross motions for summary
    judgment on purely legal grounds. Pinellas County's motion was granted, and the
    Pasco Property Appraiser filed this appeal.
    1In
    1976, Pinellas County purchased some of the parcels located in the
    Cross Bar Ranch. It purchased some of the parcels comprising the A1 Bar Ranch in
    1989.
    -2-
    This court reviews pure questions of law de novo. See Kirton v. Fields,
    
    997 So. 2d 349
    , 352 (Fla. 2008); D'Angelo v. Fitzmaurice, 
    863 So. 2d 311
    , 314 (Fla.
    2003). Resolution of the legal question here turns upon whether any property owned by
    a county, regardless of the property's geographic location, is immune from taxation or
    whether this immunity is confined to property that a county owns within its own borders.
    In Park-N-Shop, Inc. v. Sparkman, 
    99 So. 2d 571
     (Fla. 1957), the Florida
    Supreme Court held that ad valorem taxes could not be levied by the city and county
    against property owned by the county but leased to a private business, because the
    property of a county "is immune from taxation." 
    Id. at 573
    .2 The Pasco Property
    Appraiser argues that Park-N-Shop is distinguishable because its stated rationale—that
    the county should not assess taxes against its own land, pay the money to itself, then
    surcharge lessees for that amount—does not apply where a county is taxing a sister
    county. As such, it argues that a county's immunity from taxation does not apply in
    situations where one county is seeking such immunity of lands located outside of its
    jurisdictional boundaries. We agree.
    The Pasco Property Appraiser contends that in the case of overlapping
    sovereignty, the sovereign acting outside of its territory must be treated as a private
    entity. Because the Property is within the jurisdictional boundaries of Pasco County,
    and subject to the authority of Pasco County as a result, the Pasco Property Appraiser
    2Although  Park-N-Shop was decided under a prior version of the Florida
    Constitution, subsequent case law of the Florida Supreme Court suggests its ongoing
    validity. See Dickinson v. City of Tallahassee, 
    325 So. 2d 1
    , 3 n.6 (Fla. 1975) ("[Park-n-
    Shop] arose under a predecessor Florida Constitution. Nonetheless, [it is] controlling
    here since the principle of immunity is not constitutionally dependent."). However, other
    cases have opined that "immunity from taxation flows directly from the Constitution."
    Orange County v. Fla. Dep't of Revenue, 
    605 So. 2d 1333
    , 1334 (Fla. 5th DCA 1992).
    -3-
    argues that those lands are subject to taxation. The Pasco Property Appraiser
    commends the analogous reasoning of Georgia v. City of Chattanooga, 
    264 U.S. 472
    (1924), in which the United States Supreme Court held that the State of Georgia, which
    had purchased land in Chattanooga, Tennessee, was not immune from condemnation
    of the lands by the city because land "acquired by one state in another state is held
    subject to the laws of the latter and to all the incidents of private ownership." 
    Id. at 480
    .
    The Pasco Property Appraiser also warns that extraterritorial application of
    immunity from taxation "would result in a skewed application of the doctrine and
    ultimately have unjust and impractical consequences." What if, the Pasco Property
    Appraiser queries, Pasco County purchases the Don CeSar hotel on St. Pete Beach in
    Pinellas County? It could operate a lucrative, for-profit enterprise, avoiding payment of
    ad valorem taxes to Pinellas County solely based upon its status as the property's
    owner. Not only would this deprive Pinellas County of substantial revenues, the Pasco
    Property Appraiser claims, but it would also elevate one county above another despite
    the fact that each county's sovereignty is coequal.
    Pinellas County, on the other hand, argues that it is a political subdivision
    of the State of Florida and, as such, is afforded an "inherent sovereign immunity" from
    taxation. See Dickinson v. City of Tallahassee, 
    325 So. 2d 1
    , 3 (Fla. 1975) (holding
    state, county, and county school board were immune from tax levied by city); see also
    Canaveral Port Auth. v. Dep't of Revenue, 
    690 So. 2d 1226
    , 1228 (Fla. 1996) (holding
    that a port authority was not immune from ad valorem taxation because, unlike a
    county, it was not a political subdivision of the state); Park–N–Shop, 
    99 So. 2d at
    573–
    74. Emphasizing the distinction between an exemption and immunity, Pinellas County
    -4-
    contends that there is no power to tax the state or its political subdivisions because they
    are immune. Dickinson, 
    325 So. 2d at 1
     ("Exemption presupposes the existence of a
    power to tax whereas immunity connotes the absence of that power." (quoting Orlando
    Utils. Comm'n v. Milligan, 
    229 So. 2d 262
    , 264 (Fla. 4th DCA 1969))). Because each
    county's sovereign immunity emanates not from the county itself but rather from the
    state, it argues that property owned by a county anywhere in the state is immune from
    ad valorem taxation.
    Pinellas County challenges the Pasco Property Appraiser's argument that
    there are geographical limits on a county's sovereign immunity on the grounds that it
    presupposes that each county is in and of itself a sovereign, when a county is only a
    piece or subdivision of the state, which is actually the sovereign. On this basis, Pinellas
    County contends that the cases cited by the Pasco Property Appraiser relating to
    territory outside of a state are distinguishable.
    The parties also address whether a statutory exemption from taxation
    applies depending on the use of the county-owned property. However, the record is not
    sufficiently developed to address this argument, and it was not the basis for the
    underlying judgment.3
    ***
    The Florida Constitution and Florida Statutes confer upon each county the
    authorization to tax all property in the county. See art. VII, § 9, Fla. Const. (providing
    3The   only discovery propounded was requests for admissions, and despite
    the parties' claim that there are no factual disputes, the parties do not appear to agree,
    for example, as to whether the various agreements Pinellas County entered into
    regarding the Property constitute leases.
    -5-
    that counties shall be authorized by law to levy ad valorem taxes); § 125.016, Fla. Stat.
    (2014) (authorizing counties to levy ad valorem tax "upon all property in the county").
    Pinellas County's argument necessarily implies that this constitutional grant of authority
    to tax real property within a county's boundaries must yield to the common law immunity
    from taxation of another county who owns property situated therein. None of the cases
    cited by Pinellas County supports this assertion.
    The gravamen of Pinellas County's argument is simply that because
    counties are subdivisions of the State, their sovereign immunity is derivative of the
    State's sovereign immunity; and since the State's sovereign immunity is statewide, so
    should a county's be:
    The constitutional sovereign immunity of the State of Florida
    flows to its subdivisions and cloaks both Pinellas County and
    Pasco County. Each county's sovereign immunity
    emanates, not from the county itself, but rather, from the
    state. Therefore, Pinellas County's properties are immune
    from ad valorem taxation within the State of Florida.
    Pinellas County cites no authority for the proposition that a county's immunity from
    taxation extends beyond its territorial boundaries, relying instead on the foregoing
    formulation.
    Because counties are political subdivisions of the State, their ad valorem
    taxation power must necessarily yield to the immunity of the State, whose boundaries
    subsume all county property. But that does not mean that a county's taxation authority
    must yield to the immunity of another county, whose boundaries, of course, are neither
    overlapping nor coextensive with any other county.
    Like a county's assertion of immunity from municipal taxes on property the
    county owns within its own boundaries, see Dickinson 
    325 So. 2d at 3
    , the State's
    -6-
    assertion of immunity from county taxation is not extraterritorial. However, a state that
    owns property outside its territorial boundaries cannot assert immunity from taxation by
    the jurisdiction in which that property lies, such as another state. In fact, this court is
    unaware of any political entity—not states, not Indian tribes, not nations—that can claim
    sovereign immunity from taxation for its extraterritorial land holdings. Pinellas County
    apparently aims to be the first.
    Nations are not immune from taxation of their extraterritorial property. Cf.
    City of New York v. Permanent Mission of India to the United Nations, 
    618 F.3d 172
    ,
    175 (2d Cir. 2010) (holding that the Foreign Missions Act "permits the State Department
    to designate affirmative benefits such as tax exemptions and that the Act allows the
    State Department to make such tax exemptions preemptive of State and municipal tax
    laws"). Indian tribes are not immune from taxation of their extraterritorial property. See
    Mescalero Apache Tribe v. Jones, 
    411 U.S. 145
    , 148–49 (1973) ("Absent express
    federal law to the contrary, Indians going beyond reservation boundaries have generally
    been held subject to non-discriminatory state law otherwise applicable to all citizens of
    the State."); cf. Miccosukee Tribe of Indians of Fla. v. Dep't of Envtl. Prot. ex rel. Bd. of
    Trs. of Internal Improvement Tr. Fund, 
    78 So. 3d 31
    , 34 (Fla. 2d DCA 2011) (holding
    that the eminent domain action did not implicate the Tribe's sovereign immunity
    because it was an in rem action involving land that "is not tribal reservation land, is not
    within the aboriginal homelands of the Tribe, is not allotted land, and is not held in trust
    by the federal government for the Tribe"). And states are not immune from taxation of
    their extraterritorial property. See Georgia, 
    264 U.S. at 481
     (concluding that Georgia's
    sovereignty did not extend into Tennessee by its purchase of land to operate a railway).
    -7-
    Pinellas County argues that a state's loss of sovereign immunity across
    the line of a co-sovereign state has no applicability here because all of Florida's
    counties are within the boundaries of the state, which is the sovereign from which the
    counties' sovereignty derives. But counties have boundaries too. And, just as sister
    states are separate entities, sister counties are separate entities as well.
    Like states, counties are creatures of the Constitution. See art. VIII, § 1,
    Fla. Const. ("The state shall be divided by law into political subdivisions called
    counties."). And they have their own rights as separate political entities. It is true that a
    county "deriv[es] its power wholly from the sovereign state." Amos v. Mathews, 
    126 So. 308
    , 321 (Fla. 1930); see art. VIII, § 1, Fla. Const. ("Counties may be created, abolished
    or changed by law . . . ."). However, that does not mean that counties lack a separate,
    autonomous identity; a county is not "a mere arm or agency of the state" or merely "the
    state acting locally." Amos, 
    126 So. at 321
    .
    [T]he principle of local self-government does not constitute
    each county "an independent sovereignty. . . ."
    Nevertheless, their existence as local entities for local
    purposes as well as their existence as legal political divisions
    of the state is recognized by the Constitution. The same
    power which created the Legislature, namely, the sovereign
    people, recognized the counties. While a county in the
    performance of certain functions is an agency or arm of the
    state, it is also something more than that. . . . While the
    county is an agency of the state, it is also under our
    Constitution, to some extent at least, an autonomous, self-
    governing, political entity with respect to exclusively local
    affairs, in the performance of which functions it is
    distinguished from its creator, the state . . . .
    
    Id.
     (reasoning that if a county "were no more than a mere agent of the state—the state
    acting locally—bonds issued by a county would in effect constitute state bonds").
    -8-
    Pasco County and Pinellas County might each derive its sovereignty from
    the state, of which each are subdivisions. But it does not follow that each may exert its
    sovereignty within the territory of the other so as to vitiate the constitutional power the
    other enjoys within its own jurisdiction. The distinction between an exemption and an
    immunity from taxation—asserted by Pinellas County to justify such encroachment on
    the power of its neighbor—is actually a distraction. States are immune from taxation,
    but that immunity does not eliminate their obligation to pay taxes on property situated in
    another political entity's jurisdiction.
    In other words, even though an immunity from taxation indicates "the
    absence" of the "power to tax," Dickinson, 
    325 So. 2d at 1
    , some political entities
    actually do have the power to tax other entities that are immune from taxation: those
    political entities in whose territorial jurisdiction the otherwise immune entities' property
    lies. This is true of states, Indian tribes, and nations. Nothing about the distinction
    between immunity and exemption makes this untrue with regard to a county. Political
    entities only have sovereign immunity where they are sovereign and, to paraphrase a
    point cogently expressed by Judge Casanueva in his concurring opinion: Pinellas and
    Pasco cannot both be sovereign on the same matter in the same place.
    The trial court asserted that only the State can waive sovereign immunity
    and that it has not done so for the ad valorem taxation of properties owned by counties
    outside their county lines. And Judge Black cites the lack of express waiver of such
    immunity as support for his dissenting opinion. But that presupposes that counties are
    immune from taxation of property situated outside their boundaries.
    -9-
    Neither the trial court nor Pinellas County has identified any case law or
    constitutional provision that supports the proposition that counties are immune from
    taxation of their extraterritorial properties. Instead, Pinellas County has cobbled
    together inferences from inapposite cases to justify the faulty deduction that, because a
    county is a subdivision of the State, a county's taxation immunity must be coterminous
    with the State's taxation immunity.
    Pinellas County urges this extraterritorial extension in the face of
    constitutional language guaranteeing each county the right to tax all real property within
    its boundaries. That explicit taxation authority cannot be abrogated by common law
    taxation immunity that no Florida court has ever held to extend beyond an immune
    sovereign's territorial boundaries.
    We therefore reverse the trial court's order and remand for further
    proceedings not inconsistent with the foregoing, which may include a determination of
    whether the Property is statutorily exempt from taxation by Pasco County. We also
    certify the following question to the Florida Supreme Court as one of great public
    importance:
    IS PROPERTY OWNED BY A COUNTY LOCATED OUTSIDE ITS
    JURISDICTIONAL BOUNDARIES IMMUNE FROM AD VALOREM
    TAXATION BY THE COUNTY IN WHICH THE PROPERTY IS
    LOCATED?
    Reversed and remanded.
    CASANUEVA, J., Concurs with opinion.
    BLACK, J., Dissents with opinion.
    - 10 -
    CASANUEVA, Judge, Concurring.
    This case of first impression presents an issue of the extent to which a
    county may claim sovereign immunity as a defense to payment of real estate taxes
    imposed by another county in which the real property is found. In my view, the analysis
    of this issue turns in part on whether, as a matter of law, the asserting county, Pinellas
    County, is operating as a sovereign in this instance. I conclude that the answer is no
    because—to paraphrase a line from the movie Highlander—there can be only one.
    Here, the mantle of sovereign rests on the shoulders of Pasco County because the land
    at issue rests within the territorial boundary establishing its constitutional domain.
    I.
    "The doctrine of sovereign immunity, which provides that a sovereign
    cannot be sued without its own permission, . . . was a part of the English common law
    when the State of Florida was founded and has been adopted and codified by the
    Florida Legislature." Am. Home Assurance Co. v. Nat'l R.R. Passenger Corp., 
    908 So. 2d 459
    , 471 (Fla. 2005) (citing § 2.01, Fla. Stat. (2004)). In Florida, the legislature has
    waived sovereign immunity in the area of torts, § 768.28, Fla. Stat. (2014), but has not
    directly spoken to the issue presently before this court. At its core, Pinellas County
    asserts that its claim is founded on the common law and that as an equal sovereign
    under state law it is immune from taxation. In opposition, Pasco County asserts that the
    common law does not afford Pinellas County an immunity from taxation on real property
    residing within Pasco County's territorial domain. Despite a claim of immunity, our
    jurisprudence has observed "[t]hat, within constitutional limits, the Legislature may
    - 11 -
    provide for the taxation of lands or other property of the State." State ex rel. Charlotte
    County v. Alford, 
    107 So. 2d 27
    , 29 (Fla. 1958).
    By constitutional provision, our state is divided "into political subdivisions
    called counties." Art. VIII, § 1(a), Fla. Const. To these counties is afforded the power
    and authority "to levy ad valorem taxes." Art. VII, § 9, Fla. Const. For tax purposes, our
    legislature has mandated that "all property located within the county" is to be assessed.
    § 192.011, Fla. Stat. (2014). Property "shall be assessed according to its situs," §
    192.032, and real property is to be assessed "in that county in which it is located and in
    that taxing jurisdiction in which it may be located," § 192.032(1). Here, the power to
    assess and impose real estate taxes is vested, both by our constitution and by statutory
    enactment, in Pasco County. Neither source of law affords Pinellas County immunity
    from this form of taxation, nor has Pinellas County been able to cite such a specific
    authority.
    Accordingly, I conclude that the legislature, through its enactments, and
    the people, by approving our state Constitution, have authorized the situs county to
    impose and collect real estate taxes on the property located within its domain and, in
    doing so, have not specifically afforded another county—a coequal sovereign, within our
    constitutional hierarchy of levels of government—an immunity from real estate taxation
    for that real property not located within its defined domain.
    II.
    At common law the doctrine of sovereign immunity was said to originate in
    the maxim, "[T]he king can do no wrong." Cauley v. City of Jacksonville, 
    403 So. 2d 379
    , 381 (Fla. 1981); see also Louis L. Jaffe, Suits Against Governments and Officers:
    - 12 -
    Sovereign Immunity, 
    77 Harv. L. Rev. 1
     (1963). However, acquiring real property
    outside its lawful boundaries by purchase does not afford Pinellas County the right to
    raise its flag and assert its dominion as a sovereign over Pasco County, the county in
    which that land is located. Purchasing real estate does not afford the right to claim
    dominion by conquest and to thereafter govern the subject land.
    For these reasons, I conclude that there is and can only be one sovereign
    in this case, and that sovereign is Pasco County. Therefore, the protection provided by
    sovereign immunity is not within the rights held by Pinellas County. I would reverse the
    trial court's order on this basis.
    III.
    Further, I join fully in the majority opinion authored by Judge Atkinson.
    - 13 -
    BLACK, Judge, Dissenting.
    Because neither the Florida Constitution nor the controlling statutes
    express a waiver of the immunity from taxation of county-owned property, I would affirm
    the trial court's order. Absent such a waiver, the property owned by Pinellas County
    within the boundaries of Pasco County remains immune from taxation. Therefore, I
    respectfully dissent. Recognizing, however, the potential impact of this issue,
    particularly in instances where a county may be operating a for-profit business on the
    property it owns in another county, I would also certify a question of great public
    importance.
    It is well-settled that "[t]he [S]tate and its political subdivisions, like a
    county, are immune from taxation because there is no power to tax them." Cason v.
    Fla. Dep't of Mgmt. Servs., 
    944 So. 2d 306
    , 309-10 (Fla. 2006) (quoting Dickinson v.
    City of Tallahassee, 
    325 So. 2d 1
    , 3 (Fla. 1975)); accord Markham v. Broward County,
    
    825 So. 2d 472
    , 473 (Fla. 4th DCA 2002) ("All counties are political subdivisions of the
    [S]tate, Art. VIII, § 1, Fla. Const., and under Canaveral[ Port Authority v. Department of
    Revenue, 
    690 So. 2d 1226
    , 1228 (Fla. 1996),] are immune [from taxation].").4 This
    immunity from taxation "is not dependent upon statutory or constitutional provisions but
    rests upon broad grounds of fundamentals in government." Cason, 
    944 So. 2d at 309
    (quoting State ex rel. Charlotte County v. Alford, 
    107 So. 2d 27
    , 29 (Fla. 1958)); see
    Sun 'N Lake of Sebring Improvement Dist. v. McIntyre, 
    800 So. 2d 715
    , 720 (Fla. 2d
    4Immunity should not be confused with exemption. "Exemption
    presupposes the existence of a power to tax whereas immunity connotes the absence
    of that power." Cason, 
    944 So. 2d at 309-10
     (quoting Dickinson, 
    325 So. 2d at 3
    );
    accord Fla. Dep't of Revenue v. City of Gainesville, 
    918 So. 2d 250
    , 255 (Fla. 2005);
    Russell v. Se. Housing, LLC, 
    162 So. 3d 262
    , 266-65 (Fla. 3d DCA 2015).
    - 14 -
    DCA 2001) ("Immunity from taxation is not derived from the state constitution; it arises
    from common law concepts of sovereign immunity." (citing Dickinson, 
    325 So. 2d at
    3
    n.6)).
    Nevertheless, "[d]espite the State's immunity, 'within constitutional limits,
    the [l]egislature may provide for the taxation of lands or other property of the
    State.' " Cason, 
    944 So. 2d at 310
     (quoting Alford, 
    107 So. 2d at 29
    ); see Am. Home
    Assurance Co. v. Nat'l R.R. Passenger Corp., 
    908 So. 2d 459
    , 471-72 (Fla. 2005)
    ("[T]he Florida Constitution provides that the [l]egislature can abrogate the [S]tate's
    sovereign immunity." (citing Art. X, § 13, Fla. Const.)). "However, the authority to tax
    the State cannot be inferred. Such authority must be manifested by 'clear and direct
    expression of the State's intention to subject itself to' the tax." Cason, 
    944 So. 2d at 310
    (emphasis added) (quoting Dickinson, 
    325 So. 2d at 4
    ); accord Manatee County v.
    Town of Longboat Key, 
    365 So. 2d 143
    , 147 (Fla. 1978) (holding that a county's waiver
    of immunity from taxation must be "clear and unequivocal"). "[W]aiver will not be found
    as a product of inference or implication." Am. Home Assurance Co., 
    908 So. 2d at
    472
    (citing Spangler v. Fla. State Tpk. Auth., 
    106 So. 2d 421
    , 424 (Fla. 1958)). In the case
    before us, there was simply no express waiver. This fact is fatal to the Pasco County
    Property Appraiser's case.
    Counties are authorized by the Florida Constitution and statutory law to
    assess and impose ad valorem taxes on property within their boundaries. See art. VII,
    § 9, Fla. Const.; §§ 125.016, 192.011, Fla. Stat. (2014). The majority cannot cite to a
    clear waiver of the immunity from taxation of county-owned property in these authorities
    but instead concludes that this immunity from taxation does not extend beyond a
    - 15 -
    county's boundaries into that of another just as a state's sovereign immunity does not
    extend into the territorial boundaries of another sovereign. But while the states are
    separate sovereigns, Pinellas County and Pasco County are political subdivisions of the
    same sovereign from which their immunity from taxation emanates. See art. VIII, § 1(a),
    Fla. Const.; Arnold v. Shumpert, 
    217 So. 2d 116
    , 120 (Fla. 1968) (holding that as a
    subdivision of the State, a county "enjoys the [S]tate's sovereign immunity").5
    Moreover, I have found no support in the law to suggest that at its foundation the
    immunity afforded to the counties was intended to be restricted to their boundaries. Cf.
    Gwin v. City of Tallahassee, 
    132 So. 2d 273
    , 276 (Fla. 1961) (holding that property
    owned by the City of Tallahassee located in Wakulla County and used for municipal
    purposes was exempt from taxation by the tax assessor of Wakulla County because
    "[t]he exemption inures to the property itself when held and used for municipal
    purposes" and "[t]he [c]onstitution makes no requirement as to its location." (quoting
    Saunders v. City of Jacksonville, 
    25 So. 2d 648
    , 650 (Fla. 1946))).
    The concurrence further concludes that because neither article VII, section
    9, of the Florida Constitution nor chapter 192 afford Pinellas County immunity from
    taxation, the authority vested in Pasco County to tax property within its boundaries is
    unyielding. However, it is not the lack of a clear expression of immunity in the
    5Unless   the immunity at issue derived from federal law, it certainly would
    not extend beyond the territorial boundaries of Florida. It would be more appropriate to
    compare the circumstances of this case to those involving the immunity from taxation of
    property owned by the United States and located within the territorial boundaries of
    Florida. See, e.g., Russell v. Se. Housing, LLC, 
    162 So. 3d 262
    , 263-64 (Fla. 3d DCA
    2015) (holding that because property owned by the United States is immune from state
    taxation, the properties serving the Naval Air Station at Key West were immune from
    Florida ad valorem taxes).
    - 16 -
    constitution and applicable statutes that controls the outcome of the issue but rather the
    lack of a clear waiver of that immunity which otherwise remains. The majority and
    concurrence have improperly inferred a waiver of Pinellas County's immunity from
    taxation when in fact "[t]he [l]egislature's inaction does not constitute a waiver of
    sovereign immunity." See City of Key West v. Fla. Keys Cmty. Coll., 
    81 So. 3d 494
    ,
    497-99 (Fla. 3d DCA 2012) (concluding that the State's sovereign immunity from the
    city's imposition of stormwater utility fees was not waived by inference). "[S]overeign
    immunity is the rule[] rather than the exception," and "the State enjoys sovereign
    immunity unless immunity is expressly waived." 
    Id. at 497-98
     (quoting Pan–Am
    Tobacco Corp. v. Dep't of Corr., 
    471 So. 2d 4
    , 5 (Fla. 1984)).
    The supreme court's decision in Cason is instructive. In analyzing
    whether the nonclaim provisions of section 194.171, Florida Statutes (2006), applied to
    State-owned property, such that the failure to comply with the statute would result in the
    issuance of tax certificates and the sale of tax deeds, the supreme court considered "the
    effect of sovereign immunity on the application of section 194.171 to actions filed by the
    State." 
    944 So. 2d at 312
    . The court determined that "[t]he crucial inquiry is whether
    the language of section 194.171 clearly and unambiguously demonstrates legislative
    intent to apply this section to challenges by the State on State-owned property." 
    Id.
    That inquiry turned on whether the State is a taxpayer as used in chapter 194. Though
    the supreme court found definitions of "taxpayer" to be useful, including the definition
    set forth in section 192.001(13), Florida Statutes (2006),6 a related statute, it explained
    6Section 192.001(13), Florida Statutes (2006), defined "taxpayer" to mean
    "the person or other legal entity in whose name property is assessed." This definition
    remains unchanged in the 2014 version of the statute.
    - 17 -
    that in construing the statutory term consideration must be given to the purpose of
    section 194.171, "which is to ensure a reliable and predictable method for counties to
    collect revenue while also providing for taxpayer challenges to tax assessments."
    Cason, 
    944 So. 2d at 313
    . The supreme court concluded that
    a "taxpayer" is not merely the entity in whose name the
    property is assessed, but one whom the county has the
    power to tax subject to disputes about individual
    assessments. In short, a "taxpayer" under section 194.171
    is a taxable entity. This definition excludes the State and its
    political subdivisions, which are "immune from taxation since
    there is no power to tax them."
    
    944 So. 2d at 313
     (quoting Dickinson, 
    325 So. 2d at 3
    ). "Accordingly, where the State
    files suit challenging ad valorem taxation on grounds of sovereign immunity, the State's
    assertion that it is not a taxable entity takes it outside the category of 'taxpayer' targeted
    by section 194.171." 
    Id.
     Section 192.011, like section 194.171, is part of "a
    comprehensive statutory scheme for counties to assess and collect taxes
    simultaneously with procedures for taxpayer challenges to tax assessments." Ward v.
    Brown, 
    894 So. 2d 811
    , 814 (Fla. 2004). Given that chapter 192 and chapter 194 are
    part of the same statutory scheme, it necessarily follows from the supreme court's
    conclusion that the "entity in whose name property is assessed" pursuant to section
    192.011 cannot include the counties as political subdivisions of the State. The supreme
    court in Cason went on to hold as follows:
    The necessity of a clear expression of legislative
    intent to authorize taxation of the State reinforces our
    construction of section 194.171. We presume that the
    [l]egislature was aware of precedent recognizing both the
    State's immunity and the necessity of a clear and direct
    expression of intent to authorize taxation of the State when it
    enacted the jurisdictional nonclaim provision, section
    194.171, in 1983. Thus, the absence of specific language
    - 18 -
    imposing the procedural requirements on the State, rather
    than on taxpayers generally, is significant.
    ....
    We do not find, either within section 194.171 or elsewhere,
    the clear and unambiguous expression of legislative intent
    necessary to conclude that the [l]egislature intended that the
    State be subject to the harsh provisions of section 194.171
    and as a result lose its immunity from taxation.
    Id. at 313-14, 316 (citations omitted).7
    Though involving a municipality rather than a county, Dickinson is also
    instructive. Dickinson concerned the validity of a utility tax imposed by the City of
    Tallahassee on the State. 
    325 So. 2d at 2
    . The city ordinance imposed a tax on all
    purchases of electricity, water, and gas, and while the federal government and churches
    were specifically exempted, the State was not. 
    Id.
     The supreme court discussed the
    interplay between the constitutional provision allowing a municipality to impose certain
    taxes, see art. VII, § 9(a), Fla. Const., and the implementing statute upon which the
    municipality based its claim that it could tax the State, see § 166.231, Fla. Stat.
    (1973). The result was that neither the constitution nor the enabling legislation
    constituted a waiver of the State's immunity. Dickinson, 
    325 So. 2d at 3
     ("The crux of
    this case . . . is whether the State has waived its immunity from city taxation in either the
    1968 Constitution or the applicable tax statutes. We think not."). The court was
    "unwilling to supply that implication" where it was not expressly stated. 
    Id. at 4
    . The
    same analysis applies here. The constitution, chapter 192, and chapter 125 authorize
    7The
    supreme court did not address whether the property at issue in
    Cason—which had been leased to a nongovernmental entity and was being used for
    nongovernmental purposes—was immune from ad valorem taxation. Id. at 316.
    - 19 -
    counties to levy ad valorem taxes. But neither the constitution (as stated outright in
    Dickinson) nor the statutes supply the necessary express waiver of immunity. Park-N-
    Shop, Inc. v. Sparkman, 
    99 So. 2d 571
    , 573 (Fla. 1957) (reviewing the constitution and
    applicable statutes and concluding that buildings on county-owned property that was
    leased to private businesses could not be subject to taxation because the "property of
    the [S]tate and of a county, which is a political division of the [S]tate, Sec. 1, Article VIII,
    is immune from taxation.").
    The above-referenced authorities demonstrate that as a county's immunity
    from ad valorem taxation emanates from the State and not from the county itself, the
    immunity must necessarily extend to the boundaries of the State absent a clear and
    unequivocal waiver of that immunity. I have found no express waiver of a county's
    immunity from taxation in the controlling statutes as would be applicable to this case.
    Had the legislature intended such a waiver, it would have made that intention known. In
    fact, section 125.421, titled "Telecommunications services," provides in part as follows:
    A telecommunications company that is a county 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 public purpose only if the county or other
    entity of local government:
    ....
    (3) Notwithstanding any other provision of law, pays, on its
    telecommunications facilities used to provide two-way
    telecommunication services to the public for hire and for
    which a certificate is required under chapter 364, ad valorem
    taxes, or fees in amounts equal thereto, to any taxing
    jurisdiction in which the county or other entity of local
    government operates. Any entity of local government may
    pay and impose such ad valorem taxes or fees. Any
    immunity of any county or other entity of local government
    from taxation of the property taxed by this section is hereby
    waived.
    - 20 -
    § 125.421(3) (emphasis added).8 Nowhere else in chapter 125 or chapter 192 does the
    legislature indicate that the immunity from taxation has been waived. And while I
    recognize that the Florida Constitution and chapters 125 and 192 authorize counties to
    levy ad valorem taxes upon property within its boundaries, that authority does not
    preempt another county's immunity from taxation in the first instance: absent a clear and
    express waiver, immunity from taxation remains. See City of Key West, 
    81 So. 3d at 499
    . This premise is further supported by the fact that should Pinellas County refuse to
    pay the ad valorem taxes despite the majority determining that its immunity from
    taxation does not extend into Pasco County, the Pasco County Property Appraiser
    would not have the power to issue tax certificates. See Cason, 
    944 So. 2d at 314-15
    ("[T]he [l]egislature did not intentionally enact a statutory scheme that precludes the loss
    of State property for nonpayment of taxes on leased property but allows the loss
    through a tax deed sale of State property that has not been leased merely because the
    State failed to file a timely challenge to the assessment"). The statutory scheme
    "suggests the [l]egislature never contemplated that the State would be a taxpayer
    whose property could be lost through nonpayment of ad valorem taxes." 
    Id. at 315
    . If
    tax certificates cannot be issued on State and county-owned property due to sovereign
    immunity it would be illogical to permit the assessment and imposition of taxes on that
    property in the first place given that there is no recourse for the failure to pay the
    imposed taxes. Thus, a county's immunity from taxation which derives from the State
    8As
    pointed out by the concurrence, the legislature has also waived
    sovereign immunity for liability for torts. See § 768.28(1).
    - 21 -
    extends to the boundaries of the State—not just to the boundaries of that county—
    absent an express waiver.
    My position is further bolstered by Prosser v. Polk County, 
    545 So. 2d 934
    (Fla. 2d DCA 1989), a case that Pinellas County has astutely brought to our attention in
    the motion for rehearing, rehearing en banc, certification, or clarification. In that case,
    David Prosser and Elouisa Ramose filed a petition for writ of prohibition to stop Polk
    County's eminent domain action involving their property. Id. at 935. Polk County
    sought to condemn the petitioners' property in order to extend a roadway. Id.
    Importantly, the property at issue was located entirely within the boundaries of
    Hillsborough County. Id. The "sole question" presented was "whether Polk County may
    condemn and take property located outside its territorial limits." Id. In answering that
    question, this court recognized "that the authority of a county government to exercise
    the power of eminent domain derives solely from statute." Id. (citing Peavy-Wilson
    Lumber Co. v. Brevard County, 
    31 So. 2d 483
    , 485 (Fla. 1947)). The only geographical
    limitation placed on this power in the governing statute, section 127.01(1), Florida
    Statutes (1987)—which remains unchanged in the current version of the statute—was
    the following: "no county has the right to condemn any lands outside its own county
    boundaries for parks, playgrounds, recreational centers, or other recreational purposes."
    Prosser, 545 So. 2d at 935 (quoting § 127.01(2)). This court concluded that Polk
    County's eminent domain action against the petitioners was therefore not precluded
    since Polk County was not seeking to condemn the property in Hillsborough County for
    a recreational purpose. Id. Because "the applicable statute is silent as to where such
    property may lie," this court could not "find that the present action is . . . precluded." Id.;
    - 22 -
    see also Pinellas County v. Baldwin, 
    80 So. 3d 366
    , 370 (Fla. 2d DCA 2012) (citing
    Prosser and recognizing that "there could be a question about [Pinellas] County's
    authority to exercise the power of eminent domain in [Hillsborough County]").
    The power of eminent domain—like the "power" of immunity from
    taxation—"is an attribute of the sovereign." See Peavy-Wilson Lumber, 
    31 So. 2d at 485
    ; Pinellas County, 
    80 So. 3d at 370
     (quoting Dep't of Health & Rehab. Servs. v.
    Scott, 
    418 So. 2d 1032
    , 1033 (Fla. 2d DCA 1982)). While a county's power of eminent
    domain derives from statute unlike a county's power of immunity from taxation, the
    dictates of Prosser are controlling. And as plainly set forth in Prosser, a county's
    sovereign power is not limited to its own boundaries but extends into the boundaries of
    the other counties of this state absent an express limitation otherwise. As such, Judge
    Casanueva's assertion, which was adopted by the majority, that there "can only be one
    sovereign" is in direct conflict with our precedent.
    Based on the foregoing, I would affirm the order on appeal. I do recognize
    the potential impact of the immunity and even the potential abuse of it, particularly
    where the sovereign subdivision is operating a for-profit enterprise, but in the absence
    of a waiver, we must apply the law as it is currently written. See Markham, 
    825 So. 2d at 473-74
     (concluding that even where county property is leased to for-profit businesses
    for nongovernmental purposes the county property is immune from taxation where there
    is no clear and unambiguous waiver of that immunity in the controlling statute). Given
    the potential impact of the immunity—not to mention the intradistrict conflict created by
    the majority opinion—I agree with the majority's decision to certify a question as a
    - 23 -
    matter of great public importance. However, I believe the question would be more
    appropriately phrased as follows:
    IS SOVEREIGN IMMUNITY FROM TAXATION OF
    COUNTY-OWNED PROPERTY WAIVED WHEN THAT
    PROPERTY IS LOCATED WITHIN THE BOUNDARIES OF
    ANOTHER COUNTY?
    - 24 -