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Backup levy would not double Hillsborough’s transportation tax, officials say

A possible new tax, if approved by voters, would take effect only if the Florida Supreme Court rules by Nov. 2 that the 2018 tax is invalid.

TAMPA — County Commissioner Les Miller wants to give voters another chance to pass a one-cent transportation sales tax, but he’s adamant the attempt will be in place of, not in addition to, the tax voters already passed in 2018.

Miller’s intent is written into a draft ordinance county legal staff prepared last week and will present to the commission Wednesday. The proposal for the new tax says the 2020 attempt and 2018 version “shall never be levied at the same time.”

The move comes as Hillsborough residents and leaders await the outcome of a legal challenge to a transportation sales tax voters approved in November 2018. The tax went into effect Jan. 1, 2019, and has raised about $225 million so far for transit, bike, pedestrian and road projects.

But commissioner Stacy White and county resident Bob Emerson challenged the legality of the tax shortly after its passage. Their cases progressed to the Florida Supreme Court, where justices heard oral arguments on the constitutionality of the sales tax last month.

Related: Florida Supreme Court justices question validity of Hillsborough transportation tax

The pointed questions asked by the five justices raised concern among tax supporters that the measure could be thrown out, leaving the county strapped for money to fix its transportation woes.

That’s where Miller’s proposal for the commission to place nearly identical referendum on the November ballot comes in.

It calls for 40 percent of the sales tax proceeds to go to the Hillsborough Area Regional Transit Authority, and the remaining 60 percent of collected funds to be disbursed by the county and its municipalities. Of that funding, at least 1 percent would help bolster the county’s Metropolitan Planning Organization, which keeps track of failing infrastructure projects throughout the county.

Related: Hillsborough Commission considers backup penny tax

The 2018 All For Transportation plan earmarked 45 percent of all proceeds to go to funding for the county’s transit agency and 54 percent to the county and its cities. Miller also granted the cities and county the autonomy to spend the money on the transportation needs they deem fit, so long as they meet requirements outlined in state statutes. And each municipality would have the ability to grant any amount of their respective shares to the Hillsborough transit authority through inter-local agreements.

But almost immediately following Miller’s proposal, some opponents questioned whether this was a ploy to double-tax residents and visitors.

“That is not true,” Miller told the Tampa Bay Times. “It is in no way to raise more money. We’re trying to make sure we have an opportunity to have a one-cent sales tax for transportation to alleviate the problems we have in Hillsborough County. That’s it.”

The language in the proposed ordinance supports Miller’s statements.

It says the new tax would not be authorized if the Florida Supreme Court upholds the existing tax or if the justices have not issued a final order on legality of the 2018 tax by noon Nov. 2. Election day is Nov. 3.

Andrew Appleby, a professor of tax law at Stetson University, said the ordinance provides that only one transportation sales tax would ever be in effect, but he suggested going a step further to reassure voters by placing similar language in the ballot text of the referendum.

“It could state expressly that this new surtax will be effective only if the previous surtax is found invalid and thus repealed,” Appleby said. “The ordinance itself makes that clear, but not the referendum text.”

It is very difficult to predict when a ruling on the 2018 tax might come from the state’s highest court, Florida Supreme court spokesman Craig Waters said. It could be weeks, months or years before a final order is issued in the case.

“They try to reach a decision as expeditiously as they can,” Waters said. “The Constitution requires that there must be at least four members of a court that agree. Until they reach that point, the court is literally powerless to reach an opinion.”

If the court doesn’t reach a conclusion by the day before the election, but later finds the 2018 tax unconstitutional, leaders would have to wait until 2022 to place a similar measure before voters.