Florida Supreme Court strikes down Hillsborough transportation tax

Reaction from supports ranged from “disappointed” to “devastated,” but they vowed to get started immediately on a replacement referendum for voters
Florida's five Supreme Court justices listen to oral arguments Feb. 5 in a case challenging the validity of Hillsborough's transportation tax. From left: Alan Lawson, Ricky Polston, Chief Justice Charles Canady, Jorge Labarga and Carlos Muñiz.
Florida's five Supreme Court justices listen to oral arguments Feb. 5 in a case challenging the validity of Hillsborough's transportation tax. From left: Alan Lawson, Ricky Polston, Chief Justice Charles Canady, Jorge Labarga and Carlos Muñiz. [ Times (2020) ]
Published Feb. 25, 2021|Updated Feb. 25, 2021

TAMPA — One thing’s for sure: A voter-approved plan to increase the sales tax a penny on the dollar for better bus service and other transportation improvements is dead.

The Florida Supreme Court, in a ruling released Thursday, decided 4-1 that restrictions on how and where the revenue from the tax could be spent were unconstitutional.

But now, authorities are scrambling to figure out what to do with the $502.3 million already collected since the tax took effect in Hillsborough County on Jan. 1, 2019. The justices did not address that question, but the plaintiffs and the defendants in the case may ask them to revisit it.

Related: $450M still unspent after two years of Hillsborough’s transportation tax

Among the options: Refund the money to the people who paid the tax each time they made a purchase in Hillsborough, use it for local transportation improvements as the voters intended, turn it over to the state of Florida, or some combination of all three.

Backers of the tax, including elected officials and business leaders, say they won’t wait for an answer before they launch a new campaign to bring the exact same plan to the voters again.

This time, they aim to head off the Supreme Court’s objections by having the Hillsborough County Commission place the measure on the ballot rather than getting there directly through voter signatures.

A commission with a Republican majority had declined to act on transportation improvements year after year, but in the same November 2018 election where voters approved the tax, they delivered a Democratic majority more likely to embrace a plan.

Said County Commissioner Pat Kemp, “I feel there will be very strong support for this kind of initiative with the board we have now, thank goodness.”

For the Supreme Court, the sticking point was that All For Transportation — the group that spearheaded the charter amendment paving the way for the plan — spelled out how local government agencies could spend their share of the money on needs such as congestion, bus routes, and safer travel for vehicles, bicycles and pedestrians.

By structuring the measure this way, supporters illegally usurped power from the County Commission — granted sole responsibility under state law for deciding how the money is spent, the court said.

“Because it cannot reasonably be said that the voters would have approved the tax without the accompanying spending plan, we must strike the charter amendment in its entirety,” Justice Charles Canady wrote. He called the attempt to restrict how the money could be spent “an elaborate scheme.”

Justices Ricky Polston, Alan Lawson and Carlos Muñiz supported the decision. Justice Jorge Labarga was the lone dissenter.

Related: Here’s how Hillsborough would spend its transportation tax, if it could

The ruling came more than two years after Hillsborough County Commissioner Stacy White filed a lawsuit challenging the tax. White had said at the time that he hoped the case would be resolved within a month.

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White, who represents much of eastern and southern Hillsborough, called the collection of the tax “reckless” Thursday and called on authorities to stop it now. He said he will stick by his position that the County Commission should “tighten its belt” and deal with the county’s transportation challenges by spending within its existing budget.

White said he would not support a new referendum proposal if it comes before the commission. The sales tax boosts the Hillsborough rate to 8.5 cents on the dollar, higher than anywhere in Florida and too much for the county to bear, he said.

“Any future transportation spending plan should be well balanced and treat the two-thirds of our residents who live in unincorporated Hillsborough County equitably,” White said.

The Florida Legislature joined the suit in challenging the sales tax. Former state Sen. Tom Lee, the Thonotosassa Republican, echoed White’s reaction to the court’s decision.

“This ruling confirms we don’t live in a lawless society and politics can’t trump the Florida constitution,” Lee said.

The soonest the sales tax could be rolled back is a couple of weeks from now, the Florida Department of Revenue told the Tampa Bay Times. That’s how much time the parties to the lawsuit have to seek a rehearing if they wish.

The plan called for sending 45 percent of the revenue to the county’s transit authority. The rest would be divided among the county and the cities of Tampa, Temple Terrace and Plant City. The Metropolitan Planning Organization would use 1 percent of revenue for transportation planning and oversight.

Those who helped see the plan to victory in November 2018 with a 57 percent margin were reeling Thursday from the court’s decision. Still, they vowed to move ahead quickly on a replacement.

Commissioner Kemp said she was “devastated.” Tampa Bay Partnership chief executive Rick Homans called the ruling “a slap in the face” to the people of Hillsborough County.

“Today’s infamous ruling is an insult to Hillsborough County voters that will worsen our transportation crisis,” said Tyler Hudson, co-chairman of All for Transportation. “As Hillsborough County continues to grow, the court’s ruling deprives residents of the necessary transportation investment that they voted for two years ago.”

The Hillsborough Area Regional Transit authority, which was looking forward to boosting bus service with its share of the tax proceeds, issued a statement saying it will continue doing the best it can.

“We continue to do more with less — as one of the most underfunded transit systems per capita in the country,” the agency said. “One thing that is clear, Hillsborough County voters showed overwhelming support for alternative transportation solutions.”

Related: Hillsborough voters approve sales tax hikes for transportation, schools improvements

U.S. Rep. Kathy Castor cited research showing transit improvements would reduce poverty and said the ruling will hurt efforts to land more federal investment in local transportation.

“It’s a true setback for all of us who call the Tampa Bay area home and what happens when Republicans have held the levers of power too long in a state that deserves better,” said Castor, the Tampa Democrat.

Tampa City Council chairman Luis Viera said, “It’s a terrible blow to public safety and it’s a terrible blow for our community to be able to have self-determination involving transportation and mass transit.”

Viera said he would ask City Council members this week to join with the County Commission in getting a new referendum on the ballot.

Also looking ahead was Jeff Vinik, owner of the Tampa Bay Lightning, Water Street Tampa developer and a major supporter of the sales tax.

“While today’s court ruling is a setback,” Vinik said, “We must look ahead and forge a new path forward for 2022. This investment is too important to the future of our community to delay any further.”

A transportation sales tax approved by voters was expected to boost service by the Hillsborough Area Regional Transit Authority.
A transportation sales tax approved by voters was expected to boost service by the Hillsborough Area Regional Transit Authority. [ SCOTT KEELER | Times ]

As long as the seven-member County Commission is the architect behind the new measure, the state’s courts will find it acceptable, said All For Transportation co-founder Christina Barker.

“The Florida Supreme Court basically said that citizens cannot say how they want their tax dollars spent, that that is purely in the realm and power of the County Commission,” Barker said. “So we want the County Commission to put back on, really, the exact same plan that voters voted on and passed in 2018.”

Staff writers Anastasia Dawson and Charlie Frago contributed to this report.