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Judge: Hillsborough's transportation tax is legal, but spending allocations and oversight committee are not

Hillsborough Circuit Judge Rex Barbas listens to arguments in March in a lawsuit filed by County Commissioner Stacy White to overturn a one-cent transportation sales tax approved by voters last year. Barbas ruled Monday that the tax was valid, but decided to remove some details, including what percentage of the revenue should be spent on certain types of projects, from the county’s charter. [OCTAVIO JONES   |   Times]
Hillsborough Circuit Judge Rex Barbas listens to arguments in March in a lawsuit filed by County Commissioner Stacy White to overturn a one-cent transportation sales tax approved by voters last year. Barbas ruled Monday that the tax was valid, but decided to remove some details, including what percentage of the revenue should be spent on certain types of projects, from the county’s charter. [OCTAVIO JONES | Times]
Published Jun. 17, 2019

TAMPA — Hillsborough's one-cent transportation tax will stay in place, but a circuit judge ruled Monday that it will be up to county commissioners to decide how that money is spent.

Judge Rex Barbas ruled the tax is legal but decided to remove several portions of the charter amendment that 57 percent of voters approved in November. The language the judge struck included percentages determining what types of projects the tax revenue will be spent on and that gave an independent oversight committee the ability to approve projects and withhold funding from an agency.

"The stricken portions constitute a usurpation of powers as they dictate the uses (county commissioners) may apply to the proceeds as well as how much of the proceeds (county commissioners) may apply to each one," Barbas wrote in his ruling.

But All For Transportation, the advocacy group that put the tax on the ballot, is hoping county commissioners will choose to reinstate the provisions that the judge removed.

"We will ask the board at its next meeting to do just that, to follow the wishes of the more than 282,000 residents who voted for the plan exactly as described in the Charter amendment that they approved to be spent," chair Tyler Hudson said in a statement. "With this challenge behind us, we implore our local leaders to turn to the work of implementing transportation solutions that will reduce congestion, make our roads safer for everyone, and expand transit options."

Hillsborough County Commission Chair Les Miller said he was glad to hear the judge ruled the tax was constitutional, but said he doesn't expect any major discussions during Wednesday's commission meeting. Instead, he said it's more likely he and his fellow commissioners will get a briefing from the county's legal team and then hold off on votes until a later date.

"We need to make sure we get every detail and piece of information we possibly can on this," Miller said. "I don't want us jumping the gun. We've got to try to uphold what the public wanted and not make rash decisions."

Tampa Mayor Jane Castor, however, said the commission should do what the voters asked.

"This is a victory for All for Transportation and I'm confident the county commission will do the right thing and restore the full ballot language and uphold the will of the people," Castor said in a statement.

All for Transportation or any of the 11 other defendants named in the case, including the cities of Tampa, Plant City and Temple Terrace, could file an appeal. So could Commissioner Stacy White, who filed the case in December. The appeal could go directly to the Florida Supreme Court. The justices would hear the case in August, at the earliest.

Those spending categories Barbas removed dictated that the revenue delivered to the county and three cities must be spent as follows:

  • • 20 percent on maintenance of existing streets, roads and bridges.
  • • 26 percent on intersections.
  • • 27 percent on safety improvements on existing streets, roads and bridges.
  • • 12 percent on bicycle or pedestrian infrastructure.
  • • The rest goes to a general transportation fund.

• 20 percent on maintenance of existing streets, roads and bridges.

• 26 percent on intersections.

• 27 percent on safety improvements on existing streets, roads and bridges.

• 12 percent on bicycle or pedestrian infrastructure.

• The rest goes to a general transportation fund.

Agencies will no longer be prohibited from spending money on additional lanes or constructing new roads. Barbas removed an entire section that limits new lane capacity.

The judge also removed the section that would automatically send 45 percent of the tax revenue directly to the county's transit agency. The Hillsborough Area Regional Transit Agency was set to receive an additional $130 million each year, which would have more than doubled the agency's budget.

That change creates uncertainty for the transit authority going forward while it waits for county commissioners to decide how much money, if any, the agency will receive from the tax. Transit authority CEO Ben Limmer said he looks forward to working with county commissioners to ensure the best use of the tax, which he called a transformational investment.

"Fifty-seven percent of the citizens voted yes in favor of a fairly specific outline for the transportation tax," Limmer said. "Our goal is to partner with the commission to fulfill the taxypayers' vision."

County Commissioner Pat Kemp said she was pleased to see the judge uphold the tax, but was disappointed that the transit authority's allocation was treated the same way as all the other spending percentages.

"I just don't think that should've been judged in the same way the other brackets were," Kemp said. "It's a very unique, important allocation. ... It meant a lot to voters who supported this measure."

Kemp said she believes enough commissioners support giving the transit authority a dedicated revenue stream from the tax that it might be possible for the commissioners to instate that allocation themselves. But it's unclear when a vote like that would take place and if a future board would overturn the decision.

"We are very confident that the Hillsborough County Commission heard what the voters clearly said when they voted for (the tax) by 57 percent," Hudson said at an evening news conference. "It wasn't just that the money should be raised, but how it should be spent."

PREVIOUS COVERAGE:

Will Hillsborough County get to use its new transportation tax? A judge will rule soon.

Court fight starts over Hillsborough's transportation tax. The end is not in sight.

Stacy White sues Hillsborough, cities to stop voter-approved transportation tax

Barbas wrote in his ruling that because sections he removed "were established by the voters rather than by the county commission, this Court finds they fly directly in the face of general law."

White had argued the tax was unconstitutional because it violated state law and usurped power from county commissioners. Barbas mostly agreed with that, saying the wording of state law shows "the legislature's intention that the county commission be exclusively responsible for determining which uses the surtax proceeds should be allocated to as well as the amount to be distributed to each use."

White did not immediately respond to a request for comment.

If voters are not satisfied with how commissioners spend the $280 million the tax is expected to raise each year, "they have a remedy through the ballot box at the next popular election," the judge wrote.

More than $62 million has already been collected in Hillsborough county since residents and visitors started paying the tax on Jan. 1.

Barbas found that the charter amendment is still "completely operational" without the portions he deemed unconstitutional. Lawyers had argued in court whether the removal of certain portions would render the whole amendment, and therefore the tax, invalid because the new version would look too different from what voters passed.

"The valid and invalid features are not so inseparable in substance that it can be said that the voters would not have passed it without the invalid features," Barbas said. "It is evident that the voters of Hillsborough County desire to improve transportation needs. It is further obvious to this Court that the electorate made their desires clear."

Times staff writers Chris O'Donnell and Charlie Frago contributed to this report. Contact Caitlin Johnston at cjohnston@tampabay.com or (727) 893-8779. Follow @cljohnst.

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