1 STATE OF FLORIDA
CONSTITUTION REVISION COMMISSION
DATE: February 25, 1998
TIME: Commenced at 9:00 a.m.
11 Concluded at 5:00 p.m.
12 PLACE: The Senate Chamber
13 Tallahassee, Florida
14 REPORTED BY: KRISTEN L. BENTLEY
JULIE L. DOHERTY, RPR
15 MONA L. WHIDDON
16 Division of Administrative Hearings
The DeSoto Building
17 1230 Apalachee Parkway
2 W. DEXTER DOUGLASS, CHAIRMAN
3 CARLOS ALFONSO
CLARENCE E. ANTHONY (EXCUSED)
4 ANTONIO L. ARGIZ
JUDGE THOMAS H. BARKDULL, JR.
5 MARTHA WALTERS BARNETT
6 ROBERT M. BROCHIN
THE HONORABLE ROBERT A. BUTTERWORTH
7 KEN CONNOR (ABSENT P.M. SESSION ONLY)
8 SENATOR ANDER CRENSHAW
9 MARILYN EVANS-JONES
BARBARA WILLIAMS FORD-COATES
10 ELLEN CATSMAN FREIDIN
PAUL HAWKES (ABSENT)
11 WILLIAM CLAY HENDERSON
THE HONORABLE TONI JENNINGS
12 THE HONORABLE GERALD KOGAN
13 JOHN F. LOWNDES
STANLEY MARSHALL (ABSENT)
14 JACINTA MATHIS
JON LESTER MILLS
15 FRANK MORSANI
ROBERT LOWRY NABORS
16 CARLOS PLANAS (ABSENT)
JUDITH BYRNE RILEY
17 KATHERINE FERNANDEZ RUNDLE
SENATOR JIM SCOTT
18 H. T. SMITH
ALAN C. SUNDBERG
19 JAMES HAROLD THOMPSON
PAUL WEST (EXCUSED)
20 JUDGE GERALD T. WETHERINGTON
STEPHEN NEAL ZACK
IRA H. LEESFIELD (ABSENT)
22 LYRA BLIZZARD LOGAN (ABSENT)
2 (Quorum taken and recorded electronically.)
3 SECRETARY BLANTON: All unauthorized visitors please
4 leave the chamber. All commissioners, indicate your
5 presence; all commissioners, indicate your presence.
7 SECRETARY BLANTON: Quorum call, quorum call. All
8 commissioners indicate your presence, all commissioners
9 indicate your presence.
11 SECRETARY BLANTON: Quorum present, Mr. Chairman.
12 CHAIRMAN DOUGLASS: All right. If everybody would be
13 seated, please. Will the commissioners and the guests
14 please rise for the opening prayer given this morning by
15 Reverend Dr. Brant Copeland of the First Presbyterian
16 Church in Tallahassee. Dr. Copeland.
17 REVEREND COPELAND: Let us pry. Almighty God, you
18 sit in judgment to declare what is just and right and to
19 have compassion on all people. Bless this nation and its
20 leaders and especially the members of this commission.
21 Give them the spirit of wisdom and understanding, clear
22 heads and a plenitude of patience that they may sift
23 through opposing views and listen with respect. Help them
24 to make decisions that reflect your justice and your
25 desire that all may live in freedom and safety. We pray
1 in the name of the one who will be our judge and for his
2 love's sake. Amen.
3 CHAIRMAN DOUGLASS: Amen.
4 This morning our pledge of allegiance will be led by
5 students from the Bristol Middle School and they are
6 Charles Steward, if you all would come forward, Ricky
7 Mayo, Ashley Hill, Leann Nobles, Erica Spivey and Jennifer
8 Proctor. And their sponsor is Donna Summers. If you
9 would turn and face the flag and lead us, we would be
10 happy to follow you.
11 (Pledge of allegiance.)
12 CHAIRMAN DOUGLASS: Thank you. We had a very
13 productive day yesterday and if we can go with the same
14 cooperation and order and decorum we had yesterday, we can
15 probably get very far along here. Commissioner Barkdull,
16 you are recognized.
17 COMMISSIONER BARKDULL: Yes, sir, Mr. Chairman, thank
19 Members of the Commission, I also want to thank you
20 for the attention and the expeditious way the calendar was
21 addressed yesterday afternoon. I hope some of it will
22 carry over today. You have the calendar on your desk. We
23 are going to be operating out of all three books today;
24 the yellow, the blue and the pink. The Chair will attempt
25 at the time he calls a proposal to identify the book. And
1 I also have on my calendar identification of which book we
2 are in if somebody needs to ask.
3 I think that Chairman Mills is going to recommend
4 that we use the same procedure, which I concur with, that
5 we did yesterday on time limitation overall on a
6 proposition and opportunity for the sponsor to close.
7 Other than that, Mr. Chairman, and Commissioner Mills
8 may have some announcements, I'm ready to proceed with the
10 CHAIRMAN DOUGLASS: All right. We are proceeding
11 with the calendar. Commissioner Mills.
12 COMMISSIONER MILLS: Mr. Chairman, the only item you
13 have here on special order is Proposal 46, and I don't
14 know what the status of that is. That has not yet been to
15 Style and Drafting.
16 CHAIRMAN DOUGLASS: Forty-six we haven't dealt with?
17 COMMISSIONER MILLS: Maybe the rules chairman might
18 tell us how he would suggest --
19 CHAIRMAN DOUGLASS: Where is it on the sheet?
20 COMMISSIONER MILLS: It is on page, the first page,
21 Mr. Chairman, under the daily order of business.
22 CHAIRMAN DOUGLASS: Okay. I hadn't seen it yet. I
23 have got it.
24 COMMISSIONER BARKDULL: That was withdrawn or was
25 wrapped up in the debate yesterday.
1 CHAIRMAN DOUGLASS: I think that's right, that the
2 debate yesterday -- reflect that it was withdrawn by
3 unanimous consent.
4 COMMISSIONER BARKDULL: The Secretary needs to get
6 CHAIRMAN DOUGLASS: I just gave it to her.
7 COMMISSIONER MILLS: Okay, Mr. Chairman. In that
8 case, we would return to the debate by grouping. With
9 the, I think, general consent of the commission, I would
10 make the motion to limit debate to ten minutes under the
11 same conditions we had yesterday.
12 As I understand what we did yesterday, which I think
13 sorted out relatively logically, the Chair determined
14 proponents and opponents, allocated the ten minutes, two
15 minutes to close for the proponent/introducer, and prior
16 to the ten-minute clock running, explanation by the
17 designated persons from Style and Drafting and questions
18 from members.
19 If that is the will of the body I would move that
20 same procedure.
21 CHAIRMAN DOUGLASS: All right. We will follow that
22 procedure today. There is, let's see, two items on here
23 that we passed yesterday that have come back from Style
24 and Drafting and that would complete all of the items; is
25 that correct? And so we have to do the ones we did
1 yesterday again; is that --
2 COMMISSIONER MILLS: Under the procedure that was
3 established by the Rules Committee, yes. They would have
4 to come back for a final vote again.
5 CHAIRMAN DOUGLASS: The first two on here are two
6 that we passed yesterday with majority votes, correct?
7 COMMISSIONER MILLS: Actually the first one,
8 Mr. Chairman.
9 CHAIRMAN DOUGLASS: Well we passed No. 152 yesterday,
11 COMMISSIONER MILLS: Actually that was passed before.
12 Commissioner Barkdull -- what happened, that was
13 temporarily passed yesterday with amendments pending.
14 CHAIRMAN DOUGLASS: We didn't take it up yesterday.
15 COMMISSIONER MILLS: Right.
16 CHAIRMAN DOUGLASS: I remember we debated it though.
17 Okay. All right. We will start then with the, with the
18 order established and that brings up Committee Substitute
19 for Proposals 172 and 162 by the Committee on Legislative
20 and Commissioners Thompson and Evans-Jones. We debated
21 this yesterday. Is there further debate today? Has there
22 been any changes?
23 (Off-the-record comment.)
24 CHAIRMAN DOUGLASS: All right. Style and Drafting,
25 who is going to handle this? Commissioner Ford-Coates on
1 behalf of Style and Drafting. Do you have -- I have an
2 amendment on the desk.
3 COMMISSIONER FORD-COATES: On behalf of Style and
4 Drafting I would just like to point out it is in your pink
5 packet from yesterday and yield the floor.
6 CHAIRMAN DOUGLASS: There is an amendment on the desk
7 by Commissioner Planas, who is not present in the chamber.
8 Yes, Commissioner Barnett.
9 COMMISSIONER BARNETT: And one of the reasons he has
10 filed this, this is just a point of information, filed
11 this amendment is he was, this was taken up, an original
12 proposal he had which was taken up the week he was out
13 sick and it deals with term limits. And I think he wanted
14 to have this discussed. So it might be in everybody's
15 best interest if we could just temporarily pass that until
16 Commissioner Planas shows up.
17 CHAIRMAN DOUGLASS: Without objection we will
18 temporarily pass this pending the appearance of
19 Commissioner Planas and move on to Proposal No. 152. It
20 is in your pink book. Would you read the proposal,
22 READING CLERK: Proposal 152, a proposal to revise
23 Article XI, Section 2, Florida Constitution; amending the
24 deadline by which the Constitution Revision Commission
25 must file any proposed revision with the Secretary of
2 CHAIRMAN DOUGLASS: All right, Commissioner
4 COMMISSIONER FORD-COATES: There should be --
5 CHAIRMAN DOUGLASS: There is a pending Amendment
6 No. 1.
7 COMMISSIONER FORD-COATES: I would like to withdraw
8 the amendment that I offered yesterday. After discussion
9 with Commissioner Barkdull, I have a different way to
10 attack this problem.
11 CHAIRMAN DOUGLASS: All right.
12 COMMISSIONER FORD-COATES: Those amendments should be
13 on the desk.
14 CHAIRMAN DOUGLASS: There are three amendments on the
15 table. We are on Proposal 152, Commissioners. Three
16 amendments on the table. Are these on behalf of Style and
18 COMMISSIONER FORD-COATES: No, sir.
19 CHAIRMAN DOUGLASS: These are your own?
20 COMMISSIONER FORD-COATES: Yes.
21 CHAIRMAN DOUGLASS: Offered by Commissioner
22 Ford-Coates. Would you read Amendment No. 1? In the pink
23 book, it is Proposal 152.
24 COMMISSIONER FORD-COATES: We don't have them on our
25 desks yet but I assume you have them, don't you? Okay.
1 Mr. Chairman, if I might just give a little history first
2 and then we will read the amendment.
3 CHAIRMAN DOUGLASS: Commissioner Ford-Coates is
4 recognized. Now I have announced this about three times.
5 We are on Proposal 152, it's in the pink book, and we have
6 amendments on the table by Commissioner Ford-Coates. They
7 have not been distributed. They are being distributed at
8 the moment. Commissioner Ford-Coates, though, wants to
9 undertake the purpose of her amendments. Can we read the
10 first amendment?
11 READING CLERK: By Commissioner Ford-Coates the
12 following amendment: On Page 1, Lines 15 through 16,
13 strike all of said lines and insert, "within 30 days
14 before the convening of 2017 regular session of the
15 Legislature and each twentieth."
16 CHAIRMAN DOUGLASS: All right. Commissioner
17 Ford-Coates. You are recognized on the amendment.
18 COMMISSIONER FORD-COATES: Let me just put this in
19 context. We have all experienced some problems in dealing
20 with how to get our work done. And what we are trying to
21 look at is in 20 years how to make it easier for the next
22 commission. Let me just give you a little history here.
23 In 1996 a steering committee started meeting, put
24 together -- Commissioners, once you get it, you will have
25 it on your desk in a second. Listen to me here for just a
1 second. A steering committee met, set up proposed rules,
2 set up a proposed schedule.
3 Some of us followed that process and knew what our
4 calendars would be if we were on the commission. Most
5 commissioners had no idea, until they were appointed, what
6 the time commitment would be. Commissioner Barkdull put
7 in here to extend our time to submit our work load to the
8 Secretary of State.
9 I agree that we have got a problem and we have
10 discussed this. What I think the solution to the problem
11 is is to make the appointments earlier, keep the deadline
12 at 180 days of May 1st. If you had known in February that
13 you were serving on the Constitution Revision Commission,
14 you could have seen the work of the steering committee,
15 cleared your calendar, been able to come to the public
16 hearings, we could have gotten up and running in the first
17 part of May, and been done with this by now.
18 So what you have is two amendments. The first two
19 amendments that you will see there require that the
20 appointment is made 30 days before the legislative session
21 starts, within that 30 days, and returns it to the 180
22 days that we talked about that currently exists in the
23 Constitution. Does that make sense? Anybody have any
25 We have not shortened the time. What we have done is
1 provided more notice to each commissioner that they are on
2 the commission. Many commissioners did not know until
3 right before we met. Our first meeting, the steering
4 committee had hoped, would be I believe in May; is that
5 right, Mr. Chairman? We had to wait and meet in June
6 because the appointments were not made until the deadline.
7 If people know in February, perhaps we can get up and
8 running, that commission can get up and running much
10 CHAIRMAN DOUGLASS: Well I will say that the
11 President of the Senate made her appointments before the
12 deadline and gave everybody much more time than the other
13 appointing authorities did, and the Chief Justice made his
14 too. It was the Governor and the Speaker that were late.
15 And Commissioner Butterworth knew his.
16 COMMISSIONER FORD-COATES: Aside from Commissioner
17 Butterworth. I heard a lot of commissioners say last
18 summer, I have already got my summer schedule. I have a
19 trial going on, I have got commitments made. If you know
20 in February what's going on in May, it helps a lot.
21 CHAIRMAN DOUGLASS: Does everybody understand the
22 amendment? On the amendment this is. Is everybody ready
23 to vote on the amendment? Commissioner Connor.
24 COMMISSIONER CONNOR: I'd like to ask a question --
25 CHAIRMAN DOUGLASS: Certainly, go ahead.
1 COMMISSIONER CONNOR: -- and if I understand it
2 correctly, speak in opposition to it. Commissioner
3 Ford-Coates, the amendment that you are addressing now,
4 does that limit amendments which are placed on the ballot?
5 COMMISSIONER FORD-COATES: No, that's the third
7 COMMISSIONER CONNOR: Okay. Thank you.
8 CHAIRMAN DOUGLASS: This one deals only with the
9 time, I think.
10 COMMISSIONER FORD-COATES: Correct. This just
11 changes the time for appointment to 30 days before the
12 convening of the legislative session.
13 CHAIRMAN DOUGLASS: All right. Does everybody
14 understand the amendment? All in favor of the amendment,
15 say aye; opposed?
16 (Verbal vote taken.)
17 CHAIRMAN DOUGLASS: The amendment is adopted. Now
18 read Amendment No. 2.
19 READING CLERK: By Commissioner Ford-Coates, the
20 following amendment: On Page 2, Line 4, strike 90 and
21 insert 180.
22 CHAIRMAN DOUGLASS: Commissioner Ford-Coates, you are
24 COMMISSIONER FORD-COATES: This merely returns the
25 deadline for submitting our work back to 180 days from the
1 90 days that the original proposal had.
2 CHAIRMAN DOUGLASS: All right. Does everybody
3 understand the amendment? What it does is just reinstate
4 the present Constitution requirement that our work be done
5 or the commission's work be done 180 days before the
6 election, general election in 2018 or 17. Anyway, I'll be
8 COMMISSIONER FORD-COATES: Barkdull is going to be
9 here too, Commissioner Barkdull.
10 CHAIRMAN DOUGLASS: Commissioner Barkdull will be
11 here, Commissioner Kogan. All right. We are on the
12 amendment. Is there any discussion on the amendment? If
13 not, all in favor of the amendment say aye; opposed like
15 (Verbal vote taken.)
16 CHAIRMAN DOUGLASS: The amendment is adopted. Now to
17 Amendment No. 3. Would you read it, please?
18 READING CLERK: By Commissioner Ford-Coates, the
19 following amendment: On Page 2, Line 8, insert Section 2,
20 subsection d, subsection 5 of Article XI of the Florida
21 Constitution is created to read: Notwithstanding the
22 provisions of subsection a, only Constitution Revision
23 Commission proposed amendments or revisions may appear on
24 the general election ballot in those years in which
25 commission proposals may be submitted, except that upon a
1 finding of emergency, and pursuant to law enacted by the
2 affirmative vote of three-fourths of the membership of
3 each house of the Legislature, the Legislature may submit
4 a proposed amendment or revision in such a year.
5 CHAIRMAN DOUGLASS: All right. Commissioner
6 Ford-Coates, you are recognized on the amendment.
7 COMMISSIONER FORD-COATES: Commissioners, as I have
8 been going out and talking to people about the proposals
9 that we will be submitting, and they have asked how many,
10 I have told them we wish it would be five, it may be ten,
11 but don't forget, we will not be the only proposals on the
12 ballot. There may be some before us, and there may be
13 some after us that are initiated by the Legislature or by
14 citizen initiative.
15 And one of the times I spoke to people about that,
16 they said, Well, that doesn't make sense to me. If the
17 commission only meets every 20 years, why in that year
18 alone do you not limit what's on the ballot, just that one
19 time every 20 years, so people can really focus on the
20 work of the commission and not have competing proposals.
21 I made the, proposed this amendment in order to do
22 that and at the suggestion of Commissioner Barkdull added
23 in an override so that the Legislature in some unforeseen
24 emergency situation could put a proposal on the ballot.
25 CHAIRMAN DOUGLASS: All right. Does everybody
1 understand the amendment? The amendment would in effect
2 restrict the placing on the ballot of other amendments in
3 the year that the Constitution Revision Commission
4 recommends amendments. Commissioner Mills.
5 COMMISSIONER MILLS: Briefly in opposition.
6 CHAIRMAN DOUGLASS: Proceed.
7 COMMISSIONER MILLS: While I have learned to have
8 immense respect for the wisdom of this body, the
9 Constitution provides other ways for the public to express
10 itself on the ballot, including by initiative and the
11 Legislature through its ability to pass constitutional
13 With all due respect, I believe that just because
14 this commission meets, those other groups might not have
15 worthy ideas in a given year. And it's for that simple
16 purpose that I would regretfully oppose my good friend
17 Commissioner Ford-Coates because I believe that those
18 other items should still be available to the public and
19 the Legislature.
20 CHAIRMAN DOUGLASS: All right. Other discussion? If
21 not, we will proceed to vote on the amendment. All in
22 favor of the amendment say aye; opposed?
23 (Verbal vote taken.)
24 CHAIRMAN DOUGLASS: It fails. All right. We will
25 move now to the proposal as amended, the amended proposal
1 by Commissioner Barkdull. Commissioner Barkdull, you are
2 recognized now on your amended proposal.
3 COMMISSIONER BARKDULL: I think everybody on the
4 floor understands what it is. I would move the passage.
5 If anybody has any questions, I'll try to answer them.
6 Really when we get down to it, the only change in it now
7 is rather than the appointments being made within 30 days
8 after the adjournment of the regular session, they are
9 made 30 days in advance.
10 CHAIRMAN DOUGLASS: Does everybody understand the
11 proposal now as amended? All right. We will proceed to
12 vote, open the machine.
13 (Vote taken and recorded electronically.)
14 CHAIRMAN DOUGLASS: Has everybody voted? Lock the
15 machine and announce the vote.
16 READING CLERK: Twenty-nine yeas, zero nays,
17 Mr. Chairman.
18 CHAIRMAN DOUGLASS: All right. We will move next to
19 Proposal 37. Would you read it, please?
20 READING CLERK: Proposal 37, a proposal to revise the
21 Florida Constitution by adopting language that is not
23 CHAIRMAN DOUGLASS: Commissioner Mills.
24 COMMISSIONER MILLS: Mr. Chairman, I think everyone
25 has just received on their desk a copy of where in the
1 Constitution these gender-neutral changes would occur. I
2 would suggest perhaps Commissioner Freidin might want to
3 explain briefly her intent and what her interpretation of
4 the impact is and see if there are any questions. And if
5 the body wants to take a little more time to look at that,
6 we would hold this for a little while longer while you
7 made some other determinations.
8 CHAIRMAN DOUGLASS: I think we can probably go to
9 vote on this. I don't think it is very controversial.
10 Commissioner Freidin.
11 COMMISSIONER FREIDIN: Commissioners, as the last
12 time that we discussed this, it was discussed that, and
13 made clear to all of us that there are literally scores of
14 gender-specific references in the Constitution. When the
15 Governor is mentioned, it is mentioned as a he. When the
16 office of state attorney, the office of public defender,
17 all the cabinet positions are mentioned, they are all
18 mentioned in the masculine. Any time the word, the head
19 of something is mentioned, the word chairman is in here.
20 What this amendment does is nothing more than change
21 those to gender-neutral references. Now, lest any of you
22 have any concern about substantive changes, we have handed
23 out a handout to you that contains all the changes that we
24 are talking about making. I would urge any of you who
25 have any questions about whether this creates any
1 substantive change to look at the handout, if you haven't
2 had a chance to already, let us know. If you are in doubt
3 about it and need more time, please let us know.
4 Otherwise, it is time to put into our Constitution
5 the words that all of you would want your daughters to
6 read when you read the Constitution. You don't, we don't
7 want the young girls and women of this state to read
8 about, read our Constitution and have the impression after
9 they are finished reading that the Governor has got to be
10 a man, that the Attorney General has got to be a man, that
11 the state attorneys have to be men, or if you want to be,
12 if you want to chair something that you have got to be a
14 And I urge you to pass this. There was yesterday
15 raised some issue of the cost of this, which I think we
16 are all past that at this point. This is not something
17 that we should be looking at the cost of. There are many
18 other amendments that we will be offering that will cost
19 every bit as much. This shouldn't be a cost issue and I
20 urge your passage.
21 CHAIRMAN DOUGLASS: Commissioner Mathis.
22 COMMISSIONER MATHIS: I am rising in opposition to
23 Proposal No. 37 not because I don't think that gender
24 neutrality is a good idea, but because the manner in which
25 this proposal has come to us is questionable and I have
1 not had an opportunity to study the impact of this
2 proposal on the most basic fundamental document in this
4 I got what has been referred to as a handout when on
5 every other proposal that has come before this commission
6 I have gotten the specific proposal that we are voting on.
7 I am concerned that in the effort to make our Constitution
8 gender neutral, we are affecting substantive rights in
9 this Constitution that we are not giving full coverage for
10 and full debate on.
11 And I would urge this commission to step back from
12 this and let's really look at this. If we can't do that,
13 I would urge that we defeat this until we have a chance to
14 examine the real issues and its effect. I just got this
15 no less than ten minutes ago. This is the first time I
16 have seen the language that they are referring to changing
17 and it has been referred to as a handout and not the exact
19 So I would urge that we vote against this at this
21 CHAIRMAN DOUGLASS: All right. Commissioner Kogan.
22 COMMISSIONER KOGAN: I'm going to speak in favor of
23 this. First of all, in due respect to Commissioner
24 Mathis, this is the entire proposal that you have in front
25 of you.
1 Actually what it does is it strikes out the reference
2 to "he" and substitutes, for example, when talking about
3 the Governor, it puts "the Governor" in here. And
4 certainly if you read this, there is absolutely nothing
5 within this proposal other than striking out the male
6 references. Now as a woman, I would think that ordinarily
7 you would be in favor of that to show that it is gender
9 And as far as the men in the audience are concerned,
10 I would ask how many of them would be happy if they picked
11 up the Constitution and read about the Governor, her, and
12 the Cabinet people, her, and the judges, her. And instead
13 of mankind you had womankind. I mean, this is just
14 something that needs to be done. And it simply recognizes
15 a fact that all of our citizens, male and female, are
16 equal under the law. That's all it is.
17 But you do have the entire proposal right here.
18 CHAIRMAN DOUGLASS: All right. Commissioner Smith.
19 COMMISSIONER SMITH: Thank you, Mr. Chairman. Good
21 I hear Commissioner Mathis saying that she hasn't had
22 a chance to review the proposal, she has a concern. I
23 think if we go to something else, give her a chance to
24 review it, she will get a comfort level that this is just
25 a noncontroversial thing. She wants to read it and I
1 think after that time we can take a vote.
2 And I feel very confident that after she has had a
3 chance to read it she will feel as comfortable as I do
4 that this is good for my daughters, this is good for my, I
5 don't have any sons, it is good for the people of Florida.
6 We have done that before when people haven't had a chance
7 to read something, we pass it and give them a chance to
8 read it. And that's what I ask that we do, and then pass
10 CHAIRMAN DOUGLASS: Commissioner Langley.
11 COMMISSIONER LANGLEY: Just a question of the Chair.
12 We were advised yesterday that we would have knowledge of
13 what it is going to cost to print this. This is 17«
14 pages. And we were advised that we would have some
15 estimate on what the cost of it -- contrary to
16 Commissioner Freidin, I do have concern with taxpayers'
17 money and I think that it ought to be a consideration.
18 CHAIRMAN DOUGLASS: As best as we could determine
19 this will not greatly increase the cost of publishing the
20 entire document. We couldn't get a specific amount
21 because there isn't any way to get that.
22 It is up to the Secretary of State in effect to
23 select the newspapers of general circulation in each
24 county where it is published. And for example, if they
25 select a small newspaper, they get it for much less cost.
1 So I don't know what the Secretary of State will do. But
2 it is not a significant departure from the general cost
3 involved in that, as best we could determine.
4 Am I right on that, Commissioner Barkdull?
5 COMMISSIONER BARKDULL: That's what I understand,
6 Mr. Chairman. But I think that for the comfort level of
7 the group I would move we temporarily pass this and come
8 back to it later on in the morning and give Commissioner
9 Mathis an opportunity to see this.
10 CHAIRMAN DOUGLASS: There has been a motion to
11 temporarily pass this, all in favor say aye; opposed?
12 (Verbal vote taken.)
13 CHAIRMAN DOUGLASS: It is temporarily passed. We
14 will come back to it as soon as commissioners are ready to
15 advise the chair that they have read it and we will come
16 back to it and take it up, Commissioner Mills.
17 I think we can go back to the, I have just been
18 looking at this, and the first proposal, Committee
19 Substitute for Proposal 172 and 162 we passed because of a
20 proposed amendment. And I have looked at the proposed
21 amendment and it has, is a, was a Proposal No. 105, which
22 was voted on on January the 27th and defeated. It is the
23 exact same proposal. It has to do with term limits. It
24 is in another section of the Constitution than we are
25 dealing with on this particular proposal.
1 The chair would rule that the amendment is out of
2 order and would not be available either as an amendment to
3 this, for the reason it is for the wrong section of the
4 Constitution and not germane, and to the fact that it has
5 previously been voted on by the commission in the form of
6 a proposal.
7 So therefore we can revert back to Proposal No. 172
8 and 162. Commissioner Barnett.
9 COMMISSIONER BARNETT: I'm not even sure if I want
10 this proposal or not, Mr. Chairman, but the reason I rise,
11 again, is a point of information. I think Commissioner
12 Planas offered that to that particular proposal at the
13 suggestion of the staff that it would be an appropriate
14 place to do that. And he is not --
15 CHAIRMAN DOUGLASS: That is not correct.
16 COMMISSIONER BARNETT: It is correct, I was there.
17 CHAIRMAN DOUGLASS: What staff?
18 COMMISSIONER BARNETT: I was there when it was done.
19 CHAIRMAN DOUGLASS: What staff?
20 COMMISSIONER BARNETT: We'll talk about that in just
21 a minute. But the point is Mr. Planas simply wants an
22 opportunity on an appropriate vehicle to I think debate
23 this. He was not here due to his illness when his
24 proposal was taken up.
25 We have extended enormous courtesies to other members
1 of the commission, even allowing proposals to be brought
2 up again. And I would hope that you would extend that
3 same courtesy to Commissioner Planas on an appropriate
4 bill and at an appropriate time when he is here.
5 CHAIRMAN DOUGLASS: I think on an appropriate bill he
6 can offer the amendment and then I'll have to rule on
7 whether or not the fact that it's been debated and
8 defeated makes it out of order. And the Secretary is
9 clarifying that to make sure that's correct.
10 But I think it is improper and not germane to the
11 proposal that he has attempted to offer it to. And he can
12 offer it when it does come to whatever proposal that he
13 finds that would be a vehicle for it and then we can rule
14 on whether or not it is appropriate. Is that agreeable
15 with everybody? If it is, that's going to be my ruling
16 and we will at this time rule it out of order and he can
17 certainly, when he gets, here make an effort to have it
18 heard on another issue.
19 We will revert to Committee Substitute for Proposals
20 172 and 162 by the Committee on Legislative, Article III,
21 and Commissioner Thompson and Evans-Jones which was
22 debated yet and passed. And it is back now in the process
23 that all the others are in.
24 Style and Drafting, Commissioner Mills, Style and
25 Drafting. Were there any changes in this proposal which
1 you want to bring to the attention --
2 COMMISSIONER MILLS: No, sir.
3 CHAIRMAN DOUGLASS: We have the same proposal we
4 voted on yesterday and I'll ask it to be read.
5 READING CLERK: Committee Substitute for Proposal
6 No. 172 and 162, a proposal to repeal Article III, Section
7 16, Florida Constitution; relating to legislative
8 apportionment and create Article II, Section 10, Florida
9 Constitution; providing for a commission to establish
10 legislative and congressional districts; providing for the
11 appointment of members to the commission; requiring that
12 the Chief Justice of the Supreme Court fill certain
13 vacancies on the commission; requiring meetings and
14 records of the commission to be open to the public;
15 providing certain exceptions; requiring that the
16 commission file its final report with the Secretary of
17 State within a specified period; requiring that the
18 Supreme Court determine the validity of the plans;
19 providing for the Supreme Court to establish the districts
20 under specified circumstances; providing for the
21 assignment of senatorial terms that are shortened as a
22 result of apportionment; deleting requirements that the
23 Legislature apportion the state into legislative
25 CHAIRMAN DOUGLASS: Commissioner Alfonso, you were
1 chairman of the executive committee. And you rise,
2 Commissioner Langley? Commissioner Langley.
3 COMMISSIONER LANGLEY: It's a rather strange point of
4 order, but one I challenge your ruling on the Planas
5 proposed amendment because, one, there was no point upon
6 which you to rule. Nobody raised a point of order on it.
7 And two, as far as germanity, it is talking about terms of
8 office. And three, as a courtesy to Mr. Planas, I think
9 that we could, we have plenty to do, we are not going to
10 lose time to pass that until he gets here and he can argue
11 his own case.
12 But my point of order is you had nothing to rule upon
13 because no point was raised to you.
14 CHAIRMAN DOUGLASS: Your point is well taken on that
15 ground. We will get to it later. We will TP this again.
16 Move to, in the blue book, Proposal No. 6, Committee
17 Substitute for Proposal No. 6 by the Committee on Finance
18 and Taxation and Commissioner Nabors in the blue book.
19 Would you read it, please?
20 READING CLERK: Committee Substitute for Proposal
21 No. 6, a proposal to create Article VII, Section 19,
22 Florida Constitution; providing limits on the adoption of
23 exemptions and exclusions from the general state sales
24 tax; reducing the rate of the general sales tax to
25 5 percent.
1 CHAIRMAN DOUGLASS: All right. Commissioner Mills.
2 COMMISSIONER MILLS: Mr. Chairman, the Committee on
3 Style and Drafting has referred the three issues out of
4 taxation and I would request the Chair would recognize
5 Senator Scott, Commissioner Scott, who will review what
6 that package contains.
7 CHAIRMAN DOUGLASS: Before we do that, there are two
8 amendments on the table. Would you read Amendment No. 1?
9 READING CLERK: By the Committee on Style and
10 Drafting, the following amendment: On Page 1, Line 26,
11 delete the word "may."
12 CHAIRMAN DOUGLASS: All right. On committee, I mean,
13 excuse me, on the Amendment No. 1, Commissioner Scott,
14 Amendment No. 1.
15 COMMISSIONER SCOTT: Mr. Chairman, we all know what
16 this proposal is, I was going to explain it like every
17 other member has done in every other section. But in any
18 event, Proposal 6 is the issue of the sales tax that
19 Commissioner Nabors had before us. And we have a
20 technical amendment, I'm assuming it is technical, on
21 changing "may," deleting the word "may." And that's the
22 first amendment.
23 CHAIRMAN DOUGLASS: On Page 1, Line 26, in the blue
25 (Off-the-record comment.)
1 COMMISSIONER SCOTT: Correction, I was not -- I had
2 assumed from Style and Drafting that it was a technical
4 CHAIRMAN DOUGLASS: This was not a Style and Drafting
5 amendment, this is one offered by Commissioner Nabors.
6 COMMISSIONER SCOTT: I didn't think we had one.
7 CHAIRMAN DOUGLASS: There are two amendments on the
8 table by Commissioner Nabors.
9 COMMISSIONER SCOTT: Well you had stated they were by
10 Style and Drafting but they really aren't. Commissioner
11 Nabors has an amendment. This is the sales tax --
12 CHAIRMAN DOUGLASS: We are on -- Number 1 is the one
13 that says on Page 1, Line 26, delete the word "may."
14 Commissioner Scott, they are in the packet. Commissioner
15 Scott has explained this, that this is the Nabors' sales
16 tax reform amendment and he has offered -- and I'm going
17 to recognize him on his amendment, on the first amendment.
18 Commissioner Nabors.
19 COMMISSIONER NABORS: Commissioner Scott, do you want
20 to go through the whole package or do you want me to go
21 right to this amendment? You generally -- I thought the
22 introduction was we were going to explain the package, but
23 I can go right to this proposal if you would like,
24 whatever the body wants to do.
25 COMMISSIONER SCOTT: Style and Drafting had no
1 amendments on the proposal, I would yield to the proponent
2 of the proposal to explain it and then explain his
4 CHAIRMAN DOUGLASS: You are yielding to let him
5 explain the proposal, then do his amendments, and then we
6 will vote.
7 COMMISSIONER NABORS: If you would listen up, the
8 packet that you have, the special order packet, does not
9 have the -- does not have the first engrossed copy in it.
10 So what was handed -- everybody should have handed out the
11 first engrossed copy of this bill because amendments are
12 drawn to that. Does everybody have that?
13 It seems like everything I do there is always
14 confusion before I get to talk. This is a very important
15 proposal and I want to make sure everybody is centered and
17 Okay. As James Harold said, this is my proposal.
18 And he lost his, I hope I don't lose mine. Let me talk to
19 you, I need to explain the amendment. It is not a
20 technical amendment, but I think it is contrary to the
21 structure of the proposal.
22 Let me explain just very briefly to understand the
23 amendment what the proposal does, refresh everybody. The
24 proposal does three things: One is it limits the ability
25 of the Legislature in the future the way it handles
1 exemptions or exclusions to the sales tax. It requires it
2 to be in a separate bill, and declare the state public
3 purpose advanced.
4 The second thing it does is in the year 2000-2001
5 fiscal year, in that moment in time, it reduces the sales
6 tax rate from six to five. And the people instruct the
7 Legislature to achieve revenue neutrality by expanding the
8 base to eliminate those exemptions and exclusions that do
9 not advance a state public purpose. And the intent is to
10 achieve revenue neutrality. So that's what it does.
11 That's the simple concept.
12 Now to do that, it defines in the bill a concept of
13 revenue neutrality. It doesn't have anything to do with
14 whether taxes are lowered or taxes are raised. It creates
15 a revenue neutrality concept so that this process focuses
16 on a review of the exemptions. At the time that it was
17 passed 20 to 8 or whatever it was last time, Commissioner
18 Hawkes, who couldn't be here today, offered the amendment
19 to insert the word "may" and some language on revenue
21 And I have talked to him and he indicated he voted
22 for it. It did that to help the concept, but it doesn't
23 help the concept, it confuses it. Because it has to
24 have -- the fund amendment point is it has to have revenue
25 neutrality. If the Legislature wants to cut the budget,
1 just like it can now, it can do that it in a variety of
2 ways. For example, it can lower the required local
4 All of you understand that the school funding
5 formula, the state puts its money in the pot, then they
6 require a required local effort millage which is the bulk
7 of the state sales tax. And it requires -- and so there
8 is plenty of flexibility for the state to cut the budget.
9 So I propose this amendment is to cure the unintended
10 consequences of what Mr. Hawkes tried to do because it
11 confuses the concept of revenue neutrality. And I would
12 ask that you support the deletion of the word "may."
13 CHAIRMAN DOUGLASS: All right. On the amendment, the
14 word may is deleted. Commissioner Scott on the amendment.
15 COMMISSIONER SCOTT: Well I would point out to you
16 that then it would read that the Legislature shall
17 maintain revenue neutrality by taxing all exempt goods and
18 services. And I think that's a mandate and it is totally
19 different from what left here, which was that that was the
20 question, the main question in committee asked by several
21 members including myself was, you know, what happens if
22 you determine you really don't need any more money, we are
23 having a good economy and whatever.
24 And so this would now, it was left may so that they
25 may maintain revenue neutrality but they don't have it.
1 And it is a very significant change in the proposal and I
2 would be opposed to it.
3 CHAIRMAN DOUGLASS: You are opposed to the amendment?
4 COMMISSIONER SCOTT: Yes.
5 CHAIRMAN DOUGLASS: Commissioner Ford-Coates.
6 COMMISSIONER FORD-COATES: Let me ask a question,
7 after listening to what Commissioner Scott said, because
8 as I read this, what we are talking about is when all of
9 those exemptions, we start back from ground zero. Then we
10 are going to have a windfall. And if it says "may," the
11 Legislature can decide to keep the windfall. If it says
12 "shall," that they must maintain revenue neutrality then
13 the Legislature must not keep the windfall, it must go
14 back in some other way. Am I mistaken on that?
15 CHAIRMAN DOUGLASS: Commissioner Scott.
16 COMMISSIONER SCOTT: It is not a windfall. It is a
17 reduction because it says shall -- "the state sales tax
18 rate shall be reduced from 6 percent to 5 percent."
19 COMMISSIONER FORD-COATES: But it talks about
20 maintaining revenue neutrality.
21 COMMISSIONER SCOTT: It talks about may maintain it,
22 if they feel they need the money.
23 COMMISSIONER FORD-COATES: Could I ask the proposer
24 then to explain that a little more clearly?
25 CHAIRMAN DOUGLASS: Commissioner Nabors is recognized
1 to answer the question.
2 COMMISSIONER NABORS: The reason that you don't need
3 "may," it wouldn't say "shall," it just says, "will
4 maintain revenue neutrality." The reason for that is, is
5 that this is intended to be a revenue neutral proposal.
7 Currently, currently, if the Legislature --
8 currently, under a 6 percent rate, the Legislature can cut
9 the budget, but it will have to cut that by reducing the
10 rate it cuts the budget. Under this concept, under
11 revenue neutrality, when you reduce the rate to five, that
12 reduction does not diminish the amount the Legislature can
13 deal with. They can still cut the budget.
14 And it's a fallacious argument to argue that this is
15 essential because it's inconsistent with the concept of
16 revenue neutrality. The concept is there is no question
17 that this mandates the Legislature to broaden the base.
18 There is no question about that. If the Legislature wants
19 to reduce the budget by $800 million, it can do that. It
20 just reduces the required local effort, or reduces other
22 But as to sales tax during that one year, there would
23 be revenue neutrality. In the future, the Legislature
24 could reduce the rate or they could raise the rate. But
25 the concept is we have in one place a definition of
1 revenue neutrality and the other place it makes it seem
2 like it's permissive. I don't know how to explain it. I
3 mean, this is not as complex as it seems.
4 What you need to understand is this proposal does not
5 have anything to do with whether the budget is reduced or
6 increased. It has nothing to do with that. It mandates a
7 review and a broadening of the base in a fiscal year. And
8 to do that, the Legislature needs to have pressure of the
9 rollback in the rate plus maintaining a revenue neutrality
11 CHAIRMAN DOUGLASS: Does that answer your question,
12 Commissioner Ford-Coates?
13 COMMISSIONER FORD-COATES: Let me clarify it one more
14 time. So what this does is ensure that the Legislature
15 maintains revenue neutrality in this situation.
16 COMMISSIONER NABORS: Absolutely.
17 COMMISSIONER FORD-COATES: So it actually goes to the
18 basic heart of the proposal in that year, that first year.
19 COMMISSIONER NABORS: But it has nothing to do with
20 increasing -- because any dollar, any dollar that's
21 generated beyond the revenue neutrality in this proposal,
22 any dollar that's generated goes to reduce school property
23 taxes. There is no concept -- and so the Legislature
24 still maintains its prerogative to cut the budget, to do
25 whatever they want. And, frankly, if anything, it keeps
1 them from increasing the amount. It's more of a
2 limitation than it is a restriction on the ability to cut
3 the budget.
4 CHAIRMAN DOUGLASS: Commissioner Corr.
5 COMMISSIONER CORR: Thank you, Mr. Chairman. I'm
6 still trying to understand the question. Commissioner
7 Nabors, does this mean that in addition to ensuring that
8 the Legislature does not increase the budget, that it also
9 ensures that it cannot decrease it.
10 COMMISSIONER NABORS: Absolutely not. What it says
11 is, is that in that budget process that year, the amount
12 of sales tax revenue would be the same plus historical
13 growth. They could still cut the budget, they could
14 reduce the required local effort from 6.7 to 0 mills and
15 cut a billion dollars out of the budget. But the point is
16 it puts a ceiling on how much -- they couldn't increase it
17 above the amount of money they have, but they could
18 certainly reduce it by reducing other taxes.
19 COMMISSIONER CORR: I'm still not clear on that
20 because I think what Commissioner Scott said was sort of
21 juxtaposed to that. So if somebody can still help me
22 understand that I'd appreciate it.
23 CHAIRMAN DOUGLASS: Do you want to try one more time?
24 COMMISSIONER NABORS: Let me try one more time.
25 CHAIRMAN DOUGLASS: I'm not sure people are getting
1 the drift of your answer there.
2 COMMISSIONER NABORS: This was really put in there by
3 Commissioner Hawkes to try to help the proposal. The
4 point is is that in that one budget year, in 2000-2001,
5 say it's $10 billion was collected the previous year in
6 sales tax revenue, okay? The rate would be reduced from
7 six to five, okay. But the Legislature would still have
8 to come up with $10 billion in sales tax revenue, which
9 means they would have to expand the base.
10 If they wanted to cut, you know, $800 million out of
11 the budget, they could do that. What they would do is
12 they would just reduce the required local effort on
13 schools or other types of things. It's ingenuous to say
14 that somehow you have got to go away from revenue
15 neutrality in order to have the ability of the Legislature
16 to -- they still have the same ability to reduce the
17 budget. It's just like now if they want to reduce the
18 budget, they could reduce the budget without reducing the
19 sales tax from six to five.
20 COMMISSIONER CORR: To follow up then, would it be
21 possible that the sales tax rate could be rolled back to
22 5 percent and because of success in the economy, that
23 there would still -- none of the exemptions would need to
24 be rolled back because of sort of a -- we could go back to
25 5 percent and still not take away any exemptions. Would
1 that be possible?
2 COMMISSIONER NABORS: Absolutely. And if that was
3 possible then they would have revenue neutrality because
4 of the amount of money that came in because of the
5 increase in the economy.
6 COMMISSIONER CORR: Just because of the success.
7 COMMISSIONER NABORS: That's right, that's right.
8 COMMISSIONER CORR: So this doesn't require those
9 sales tax exemptions to be sort of, quote, rolled back, if
10 the economy is doing well.
11 COMMISSIONER NABORS: But to be candid with you, if
12 the economy is exactly like it is now, it would require a
13 broadening of the base in order to receive revenue
14 neutrality, no question about that. If we get more money
15 than anticipated and the Legislature did nothing, then it
16 would, then that extra money would go to reduce property
18 CHAIRMAN DOUGLASS: All right. On the amendment,
19 we're on the "may" amendment; not the month May, but the
20 word "may." Everybody ready to vote on the amendment?
21 Commissioner Riley.
22 COMMISSIONER RILEY: Commissioner Nabors, if I may,
23 on Page 2 of the amendment.
24 (Off-the-record comment.)
25 COMMISSIONER RILEY: Oh, I'm sorry, I apologize.
1 I'll wait.
2 CHAIRMAN DOUGLASS: All right. Any further questions
3 or discussion on this amendment? All in favor of the
4 amendment say aye; all opposed?
5 (Verbal vote taken.)
6 CHAIRMAN DOUGLASS: Unlock the machine.
7 (Vote taken and recorded electronically.)
8 CHAIRMAN DOUGLASS: Lock the machine and announce the
10 READING CLERK: Seventeen yeas, 12 nays,
11 Mr. Chairman.
12 CHAIRMAN DOUGLASS: By your vote you've adopted the
14 Now we move to Amendment No. 2. And that's by
15 Commissioner Nabors as well. Commissioner Scott, do you
16 want to yield to him? Commissioner Nabors.
17 COMMISSIONER NABORS: Amendment No. 2 does basically
18 two things. To everybody's relief it shortens the
19 definition of revenue neutrality by ten lines.
20 The other thing it does is, if you recall, now listen
21 up, if you recall before when the Lottery proposal was
22 alive we defined, when the Lottery proposal was alive, we
23 defined -- what this current definition does in clear
24 language says, revenue neutrality means last year's, the
25 prior year's sales tax revenue, plus growth. Any dollar
1 beyond that goes to reduce required local effort, or
2 property taxes.
3 The prior language also allows it to include filling
4 up the hole in the Lottery, which we no longer need
5 because that's now been defeated. There is no hole
6 created. So what this does, it makes a clear revenue
7 neutrality and simplifies the language. Basically what it
8 says is any dollar received, greater than the prior year's
9 sales tax money plus historical growth over five years,
10 goes to reduce the required local effort on school
11 property taxes.
12 CHAIRMAN DOUGLASS: Commissioner Barkdull, on the
14 COMMISSIONER BARKDULL: I'm looking for it, that's my
15 problem. It's in the book? Could we have it read?
16 CHAIRMAN DOUGLASS: Read the amendment. It's a
17 lengthy amendment.
18 READING CLERK: By Commissioner Nabors, the following
19 amendment: On Page 2, Line 14, through Page 3, Line 6,
20 delete those lines and insert: Section C, revenue
21 neutrality guarantee. The general state sales tax
22 revenues estimated by the Legislature in general
23 appropriations bills for state fiscal year 2000-2001 shall
24 not be less than the general state sales tax revenues
25 collected during the prior fiscal year, as adjusted by
1 average historical growth during the last five years. Any
2 excess general state sales tax revenues for state fiscal
3 years 2001-2002, 2002-2003, or 2003-2004 in excess of this
4 revenue neutrality guarantee shall be appropriated to
5 reduce the ad valorem millage fee for school purposes
6 under the established public school formula.
7 CHAIRMAN DOUGLASS: Commissioner Langley.
8 COMMISSIONER LANGLEY: Question of Commissioner
10 CHAIRMAN DOUGLASS: He hasn't explained his amendment
11 I don't think. But you can ask him a question, maybe that
12 will help him explain it.
13 COMMISSIONER LANGLEY: In the explanation tell me how
14 you control what the tax revenue estimate is going to be?
15 That's based on -- that's based on the factors that go
16 into, you know, tourism and sales and all the different
17 factors that they get into to estimate. And you're saying
18 there that the estimate shall not be less than the general
19 sales tax revenues collected during the prior year. I
20 wish we could control the economy like this, but I don't
21 see how we can just by passing this law.
22 COMMISSIONER NABORS: As you know, in the
23 appropriation process, it's all based upon estimates of
24 sales tax revenue. And it's those estimates that would
25 have to be used. Those estimates would have to be used.
1 CHAIRMAN DOUGLASS: All right. Anybody else on the
2 amendment? Commissioner Kogan.
3 COMMISSIONER KOGAN: This probably relates back to
4 the original proposal as well, but I have got to ask this
5 question, I really don't understand this. In the original
6 proposal you're reducing the tax rate down to 5 percent,
7 and essentially you're letting the Legislature phase out
8 or actually you're saying, no exemptions, they have got to
9 restore them.
10 What happens if they go ahead and are unable to raise
11 enough revenue with the 5 percent, and eliminating all
12 these exemptions there is still not enough money, can they
13 then raise the percentage of the sales tax.
14 COMMISSIONER NABORS: Well, I think the schedules we
15 sent out, I think that one of the reasons we settled,
16 those who believe in this, on the 5 percent is that there
17 is plenty of room in terms of that we don't -- no one
18 feels this strains the Legislature in terms of coming up
19 to revenue neutrality, and let me tell you why.
20 If you look at it, just for purposes of illustration,
21 if they did the same thing they did in '87, Commissioner
22 Kogan, they did the same thing and removed those
23 exemptions that were selected by that legislative session,
24 what would happen is you could reduce the rate from six to
25 five, you would come up with $400 billion in additional
1 revenue which would go for property tax relief.
2 So we don't think any of those proposals -- and you
3 can look at the schedules we sent out -- strains the
4 Legislature in getting what they need to do in this tax
5 fairness initiative.
6 CHAIRMAN DOUGLASS: On the amendment, Commissioner
8 COMMISSIONER KOGAN: A follow-up question though.
9 But I can foresee, you know, that there are situations
10 where even if you eliminate a whole bunch of these
11 exemptions, you're still not going to have enough revenue
12 to run the state. And my question is: Is the state
13 forever locked into that 5 percent without another
14 constitutional amendment?
15 COMMISSIONER NABORS: Absolutely not. The 5 percent
16 is for one moment in time only. There is nothing that
17 restricts the Legislature the next year from raising it
18 up. There is no restriction on the Legislature in a tax
19 initiative year to go to four and remove more exemptions
20 than we think that they will.
21 But it is a one-year initiative process that requires
22 the process to be done within the context of a ceiling of
23 a rate and a floor of revenue neutrality. But after that,
24 you know, it could be raised up as the dictates of the
25 state need. We hope, the purpose of this is, if we can
1 broaden the base, which everybody who knows this area,
2 every economist, every expert says, if you can broaden the
3 base, then the need for additional increases diminishes
4 over time, particularly with changes in the economy.
5 CHAIRMAN DOUGLASS: Commissioner Mills, you had asked
6 to be recognized for a housekeeping matter.
7 COMMISSIONER MILLS: I just wanted to point out that
8 what we said, we're doing a ten-minute limitation on final
9 passage. And it's appropriate that, you know, we are
10 amending it into a position. So I just didn't want people
11 to think that we had abandoned our procedure.
12 CHAIRMAN DOUGLASS: We haven't because we're still on
13 questions and we still have amendments we're dealing with.
14 We haven't gotten to that. Commissioner Scott, you're
16 COMMISSIONER SCOTT: I probably should clarify
17 something. I am here because as a member of the Style and
18 Drafting Committee, the chairman graciously told me that I
19 would be the point person on this proposal. I'm not here
20 because I support this proposal. I just wanted, you know,
21 to make that point.
22 CHAIRMAN DOUGLASS: It was a strange pick, wasn't it,
23 Commissioner Scott?
24 COMMISSIONER SCOTT: The point though is a good point
25 that Commissioner Kogan is making is that to say that we
1 are going to do something based on revenue estimated by
2 the Legislature, which is really not what's done anyway.
3 There is a revenue estimating conference, the Governor has
4 people on it and so forth that does this.
5 But then to put into the Constitution that we're
6 going to do things and repeal tax exemptions or not repeal
7 them or eliminate them based on some revenue estimate I
8 just think is a bad idea. It doesn't make this proposal
9 any worse, it's already not that great. But I just don't
10 think it's a good idea to have that in there. And it may
11 have been -- in fairness to him -- it may have been in the
12 original version of this also. But it's a good point.
13 CHAIRMAN DOUGLASS: You oppose the amendment?
14 COMMISSIONER SCOTT: Yes.
15 CHAIRMAN DOUGLASS: Anybody else on the amendment?
16 Oh, Commissioner Corr, excuse me, you want to speak on the
17 amendment or you have a question?
18 COMMISSIONER CORR: Question. Thank you, Mr. Chair.
19 Just to continue to try to understand this. Does somebody
20 on the floor know what the estimated tax revenues are for
21 this year, 1998, seeing how we're near session beginning?
22 (Off-the-record comment by Commissioner Nabors.)
23 COMMISSIONER NABORS: I don't know if they got it out
24 since the upcoming --
25 COMMISSIONER CORR: What I'm trying to get at is do
1 we know what it is in terms of how much larger it is this
2 year compared to last year? Does anybody have a feel for
3 that yet going into the session here?
4 COMMISSIONER SCOTT: Mr. Chairman?
5 CHAIRMAN DOUGLASS: Commissioner Scott.
6 COMMISSIONER SCOTT: I don't know exactly how much
7 larger, but there is a revenue estimating conference in
8 about a week, next Friday week that will then give the
9 numbers. So I know that it's larger than last year but
10 I'm not sure how much.
11 COMMISSIONER CORR: I have a further question. I
12 heard, and I'm not plugged in enough to really know if
13 this is accurate, but I have heard that the upside could
14 be some $3 billion greater than last year. Do you have an
15 order of magnitude at this point since you're only a week
16 away from the conference?
17 CHAIRMAN DOUGLASS: Maybe you heard the budget might
18 meet, Commissioner Jennings.
19 COMMISSIONER JENNINGS: I know just enough to be
20 dangerous, but I'll give a little bit more information for
21 you, if you would like, Commissioner Corr.
22 The budget has that much gross in it, that's not
23 purely sales tax revenue. That would be all revenues
24 coming into the state as well. So I'll call down to
25 finance and tax to see if we can get some specific
1 numbers, but, again, it will change probably next --
2 March 6 is the revenue estimating conference that we do
3 our final allocations for this year's budget from.
4 So we're about a week ahead of time.
5 COMMISSIONER NABORS: Let me answer that real
7 CHAIRMAN DOUGLASS: All right, Commissioner Nabors.
8 COMMISSIONER NABORS: The current Constitution, the
9 revenue limitations in the current Constitution is based
10 upon state revenues, which we have heard some testimony.
11 I think you were at the one in Fort Myers where someone
12 said that that is not a real revenue because it is so
13 large. This is more surgical. It's based upon an
14 increase in sales tax. It would be a smaller amount.
15 One of the problems with sales tax is, the reason you
16 need this, Commissioner Corr, is that percentage varies.
17 In good times it's good, in bad times it's bad. And
18 that's why we have a shaky state budget process.
19 CHAIRMAN DOUGLASS: Now, Commissioner Smith, do you
20 have a question or do you want to speak to the amendment?
21 COMMISSIONER SMITH: Question, please. For those of
22 us who are challenged in the area of taxation, I hear
23 Commissioners Langley and Scott basically say that it
24 doesn't pass the giggle test to use tax estimates. That's
25 what I hear them saying. Well, what about alternatives?
1 If you're not using tax estimates, what else would you
2 use? I mean, obviously we could -- if they're opposing
3 that, they're not going to help and say, well, use this
4 instead of that. What's your response?
5 COMMISSIONER NABORS: I wouldn't apply the giggle
6 test to anything the Legislature does. Let me tell you
7 that the truth is, is that every time you do a budget, it
8 has to be based on estimations and it's a collegial
9 process that's done. So this is no different than that.
10 This does not cause any heartbeats, giggles or hiccups in
11 terms of the implementation of it.
12 CHAIRMAN DOUGLASS: All right. On the amendment,
13 Commissioner Langley.
14 COMMISSIONER LANGLEY: Well, I'm ready to vote too,
15 but I just don't understand. And, frankly, Commissioner
16 Nabors, you didn't explain it to my satisfaction.
17 And the first lines of your item C in your amendment
18 talks about you're going to determine what a revenue
19 estimate is going to be in the year 2000. And you're
20 saying that it can't be less than what the actual revenues
21 were the prior year. If there's a recession or
22 depression, those things are not going to be controlled by
23 whatever language we may present to the people. That's
24 going to be a factual situation. And those revenues, the
25 estimate may well be less than what was spent the year
1 before. I've seen that in the Legislature.
2 How do you control by law a revenue estimating
4 COMMISSIONER NABORS: Well, in the first place, it's
5 not me that does that. What would happen is there would
6 be an estimate that would be given in this one year only.
7 There would be an estimate given to the Legislature of how
8 many dollars that they have to deal with in the
9 appropriations process.
10 To the extent that that is greater than the prior
11 year, that it is greater than the prior year, it has to be
12 used for property tax relief. Implicitly if it's less,
13 then that's all they got. If that's all they got, it
14 doesn't require the rate to be increased because the rate
15 is frozen at 5 percent. But they would get an estimate,
16 if that estimate is greater than the prior year, this says
17 that that would have to be used to reduce the required
18 local effort.
19 CHAIRMAN DOUGLASS: All right. Commissioner Scott,
20 we are ready to vote on the amendment. Unlock the machine
21 and let's vote on the amendment. It's Amendment No. 2.
22 (Vote taken and recorded electronically.)
23 CHAIRMAN DOUGLASS: Lock the machine, announce the
25 READING CLERK: Sixteen yeas, 14 nays, Mr. Chairman.
1 CHAIRMAN DOUGLASS: All right. We have Amendment No.
2 3 on the table by Commissioner Evans. Would you read the
3 amendment, please?
4 READING CLERK: By Commissioner Evans, the following
5 title amendment, on Page 1, Line 6, delete "percent" and
6 insert "percent for the state fiscal year 2000-2001."
7 CHAIRMAN DOUGLASS: All right. Commissioner Evans,
8 you're recognized on your amendment.
9 COMMISSIONER EVANS: All right. I find that the
10 language reducing the rate of the general sales tax to
11 5 percent is extremely misleading. I think it's very
12 possible that people might think that that is a
13 constitutional limit and that the Legislature could not be
14 able to override it simply by looking at the title.
15 So I think taking the language from the body of the
16 amendment, 5 percent for state fiscal year 2000-2001 is
17 much more accurate with no misleading.
18 CHAIRMAN DOUGLASS: All right. On the amendment.
19 Does everybody understand the amendment? Any questions?
20 Commissioner Nabors, do you want to address the amendment?
21 COMMISSIONER NABORS: No, the amendment is fine.
22 CHAIRMAN DOUGLASS: All in favor of the amendment say
23 aye; opposed?
24 (Verbal vote taken.)
25 CHAIRMAN DOUGLASS: The amendment carries and is now
1 part of the proposal.
2 All right. We're ready to debate the proposal.
3 Proponent? Commissioner Brochin and Commissioner
4 Ford-Coates. All right. Do you want to take -- how about
5 opponents? Okay, very well. I'll try to alternate you.
6 I'll start with Commissioner Nabors to take just a little
7 bit of time.
8 COMMISSIONER NABORS: I've been talking, I think
9 everybody is tired of listening to me. We have other
10 proponents. I would like for you, hopefully, in the
11 debate, in the limited time we have, you will see that
12 this is a proposal that's widely shared among this body.
13 It's not just a Nabors' proposal. It's one we have worked
14 at, I have talked to most of you about.
15 In my judgment, it's the fundamental most important
16 thing we can do. If we don't do it, it's not going to be
17 done. The Legislature institutionally cannot do it. It
18 cannot be done by voter initiative, it violates the single
19 subject matter. We have got a proposal to abolish the
20 budget reform commission.
21 We have 20 years before we offer an opportunity to
22 talk to the people about this idea. And everybody in
23 power will tell you it's the thing that needs to be done
24 for Florida to survive the next 20 years.
25 CHAIRMAN DOUGLASS: Opponent, Commissioner Barnett.
1 COMMISSIONER BARNETT: Thank you, Mr. Chairman. For
2 those of you who haven't heard me say this before,
3 philosophically I strongly believe in expanding the sales
4 tax base to include excluded services, professional
5 services, and to look at exemptions. I also strongly
6 believe that the Constitution is not the place to do that
7 and that this proposal is inherently unworkable in its
8 current form.
9 The reality about what we are asking the Legislature
10 to do is in two years to look at 4- or 500
11 currently-on-the-books exemptions, sales tax exemptions
12 and look at the concept of personal services, professional
13 services, and to make a decision about each of those
14 individual cases in a two-year period. Every one of
15 those, every one of those has a story behind it.
16 This proposal presumes that none of those are
17 legitimate exemptions, that they don't encourage economic
18 development, that they don't serve a public purpose.
19 Believe me, the debate on those particular aspects of
20 every one of these will be a long, involved, important
21 debate to this state and to the citizens who are benefited
22 or who support those particular exemptions.
23 This is a very difficult message to send to the
24 business community and to the economic development efforts
25 of our state. The business community that I'm familiar
1 with basically is not opposed to taxing services or ex --
2 I mean, taking the exemptions away, but they want tax
3 certainty and they want a tax that they can administer.
4 This proposal -- they want a tax that they know how to
5 administer. They don't want to have to pay a dollar to
6 collect a dollar in tax.
7 This proposal picks up the services tax. Any of you
8 that were involved in this know that tax is enormously
9 complicated. And the way it was implemented was to adopt
10 corporate income tax principles about where the benefit of
11 the service is enjoyed.
12 Florida almost never got around to implementing it in
13 a year and a half of rulemaking because it was so
14 complicated and because the people required to collect and
15 pay that tax didn't know how to calculate the tax, didn't
16 know the services that they had to include within their
17 tax base. It became one of the reasons the tax was
18 ultimately repealed by the Legislature.
19 Now I know we don't have a lot of time and I want to
20 save time for others, but I will just tell you practically
21 what we are asking the Legislature to do, they cannot do
22 in the time period. And the Legislature can do this.
23 They have done it in the past, they are looking at
24 exemptions now and they are looking at professional
25 services now. This is not the place to do it in the
2 CHAIRMAN DOUGLASS: All right. Proponent,
3 Commissioner Ford-Coates. You have a question,
4 Commissioner Sundberg? Commissioner Ford-Coates, you're
6 COMMISSIONER FORD-COATES: Commissioners, I think we
7 need to keep our eye on the heart of this proposal, which
8 is to get to the point where exemptions are handled in an
9 appropriate way, in a single bill where we know what's
10 going on, where they can't be attached onto a bill in the
11 middle of the heat of the session. I think that this is
12 the only way this is going to happen.
13 And with all due respect to Commissioner Barnett, I
14 have had a little experience in teaching people how to
15 collect sales tax and, yeah, it can be difficult, but it
16 can be done right. And once it's done and it's in as a
17 process, it works very well.
18 It is difficult to learn a new thing, no matter what
19 happens, but those problems can be dealt with by the
20 Department of Revenue. This is a good proposal. It's a
21 proposal the public in particular, I think, needs an
22 opportunity to comment on. And I know we've heard this
23 before, but I think it is essential that we take this to
24 public hearing and see what the public has to say about it
25 because I think it's one which they are going to like.
1 Mr. Chairman, with your permission, I'd like to yield
2 just a moment of my time to Commissioner Lowndes, who was
3 just off the floor when you asked for proponents, to
4 complete the thoughts on this good proposal.
5 CHAIRMAN DOUGLASS: I think you just wait a minute.
6 I've got to go to an opponent and I'll come back to you,
7 Commissioner Lowndes.
8 Commissioner Scott is an opponent. Commissioner
9 Morsani, you were an opponent too? Okay. You have two
10 minutes. I think we're going to have to extend the time
11 if we're going to debate this the way everybody wants to
12 and I won't enforce it unless we get out of line here.
13 Okay? Commissioner Scott.
14 COMMISSIONER SCOTT: This is a very bad idea, we
15 discussed it before. To try to impose something like this
16 in the Constitution, it is double bad. And you can't
17 correct that except every two years without some special
18 election, which is an extraordinary expense and whatever.
19 If something goes wrong in this, and we have no idea -- we
20 spend, literally last week we spent all week just on the
21 budget and another week before that. I mean -- and every
22 one of these issues that's brought up takes hours, tens of
23 hours of testimony.
24 You really shouldn't try to put something like this
25 into the Constitution. Very bad idea for the reasons that
1 Commissioner Barnett and others have enumerated.
2 COMMISSIONER MILLS: Mr. Chairman?
3 CHAIRMAN DOUGLASS: Commissioner Mills.
4 COMMISSIONER MILLS: I move to extend the time five
6 CHAIRMAN DOUGLASS: All in favor, say aye; all
7 opposed, no.
8 (Verbal vote taken.)
9 CHAIRMAN DOUGLASS: Carries. Now proponent
10 Commissioner -- we have got three of you. You have two
11 minutes between you. Commissioner Brochin was originally
12 designated as a proponent. You have the floor.
13 COMMISSIONER BROCHIN: I'm going to make it quick
14 because I do want everyone else to speak. I'm going to
15 address the issue about whether it belongs in the
16 Constitution because I think that's a very legitimate
17 question to raise. It probably doesn't.
18 But if you review our entire Constitution, we have
19 tax policy in our Constitution. So to suggest that tax
20 policy doesn't belong in the Constitution I think is a
21 little disingenuous, because we have it. We have it
22 because the Legislature can't impose an income tax. The
23 ad valorem taxes are restricted in the Save Our Homes
24 Proposal in the amount that they can raise.
25 This, to use an oft-quoted phrase, balances or levels
1 the playing field to at least make it a fair spreading of
2 the tax. So, yes, in a perfect constitutional world we
3 would let the Legislature decide which if any taxes to
4 impose. But they don't have that flexibility and they
5 don't have it because our Constitution uniquely has tax
6 policy in it.
7 This is actually a modest proposal to begin to spread
8 the base which, by the way, there was no dissent before
9 the Finance and Tax Committee when we heard testimony, no
10 dissent on the issue that our tax base needs to be spread
11 out or it will be chaotic in the future. No dispute about
12 that. And this is an attempt to spread that tax base out.
13 We all have interests. Commissioner Hawkes at one
14 point talked about a take home amendment and I asked him
15 what it meant. It means it's something you can take home.
16 Well, when I take home this amendment to my 900 lawyers in
17 the law firm I'm a member of, I am not going to be a very
18 popular guy there because they are going to look at me and
19 say, Why do we need this? And I am going to tell them
20 that it is our attempt in Florida to make this a fair tax
21 for all. And that includes professional, it includes
22 accountants, in includes bankers, it includes everybody in
23 this state.
24 So I think we should pass this. I think we should
25 let the people hear about this. There will be a lot of
1 people opposing this, but that to me is essentially a good
2 thing in the sense that it's about fairness and it's about
3 everybody paying. And we need to make these steps and we
4 should make them now.
5 CHAIRMAN DOUGLASS: The proponents have two minutes
6 left. The opponents have the extended two-and-a-half
7 minutes left. Commissioner Morsani.
8 COMMISSIONER MORSANI: Commissioners, I voted for
9 this proposal initially.
10 As I said, I voted for this proposal initially. I
11 read at length Mr. Nabors' information. But I have come
12 to the conclusion that I was wrong. Sorry, Mr. Nabors.
13 But I think Commissioner Barnett really summed it up.
14 This -- our current tax system has been crafted over
15 a number of years by people that were trying to do the
16 right thing. Yes, maybe they didn't always do the right
17 thing. But I don't believe we as 37 members, without the
18 historical background, without having the analytical
19 people before all of us to digest something, this is a
20 $44 billion item. That was with a B.
21 I don't think that we all have the information that
22 we would need to ponder a decision of this magnitude.
23 Even though I want to support, I think we need to look at
24 our tax base, but I also think that our Legislature in
25 their wisdom has been able to find the taxes and change
1 the taxes as they needed to in the past.
2 I do believe that we're on a new level in the state
3 of Florida with the leaderships of the House and the
4 Senate. And we are getting, I think, and with all due
5 respect to former legislators in this room, I really
6 believe as a group we have the finest legislators we ever
7 had and they are changing the dynamics of what's going on
8 in this state.
9 This is the wrong proposal at the wrong time for us
10 to digest on a short notice. I would encourage you to
11 vote against this proposal.
12 CHAIRMAN DOUGLASS: All right. Proponent,
13 Commissioner Lowndes.
14 COMMISSIONER LOWNDES: Mr. Chairman, I'm in favor of
15 this proposal. And I'm in favor of it for the reason I
16 think that the tax base needs to be broadened in this
17 state and I think the Legislature needs some help and some
18 courage in doing it. I think this will provide them the
19 courage to do it.
20 As far as whether it should be in the Constitution or
21 not, after the initial work done by the Legislature in the
22 next two years, the only thing left in the Constitution,
23 which is the provision that Commissioner Ford-Coates spoke
24 of that from then on exemptions from the sales tax would
25 be in single bills, that's the only thing left in the
1 Constitution. I think that certainly would be appropriate
2 in the Constitution.
3 As far as the Legislature being able to get the work
4 done, my sense about that is the work will get done if the
5 job is there. My observation would be that the
6 Legislature finally gets down to doing the job it needs to
7 do, and if it's mandated to do this job, it will get the
8 job done. So I urge everybody to pass this amendment.
9 CHAIRMAN DOUGLASS: All right. Any other opponents?
10 All right, one minute left -- opponent, Commissioner
11 Argiz. I think you have a minute and three quarters.
12 COMMISSIONER ARGIZ: I supported this proposal at
13 committee level, but I changed my mind. And due to
14 various items. I've spoken to people around the state,
15 primarily the business people and I wanted to support to
16 broaden the tax base, but at the same time, I've heard how
17 adverse it would be to businesses around the state.
18 And due to that fact, even some of the professionals
19 that Mr. Brochin, Commissioner Brochin discussed, I talked
20 to Florida CPAs, and their problem with it is neutrality.
21 A lot of the services that are performed in the state of
22 Florida can be transferred out of state, which gives a
23 competitive advantage to the larger firms that don't have
24 a home base in the state of Florida. The same thing goes
25 with the banking services. This tax is all banking
1 transactions and I heard from the bankers as to the same
2 argument, and I do agree with it.
3 And finally, you know, when I came to this country at
4 the age of eight, I was clothed, sheltered and educated by
5 the Catholic charities for six years until my parents were
6 able to leave Cuba and join me in Tampa at the time.
7 And what they're saying is that they think it's a
8 great proposal. But when you look at it, they're saying
9 the budget costs to fight this and protect their exemption
10 after this is passed, it's just not a fruitful investment
11 for them and that's why they're telling me, and I spoke to
12 them as late as this morning, that they're against it.
13 So, therefore, because of those arguments, I have
14 changed my mind, although I supported it at the committee
15 level. And I'm going to vote against it today.
16 CHAIRMAN DOUGLASS: Okay. To close, Commissioner --
17 COMMISSIONER SUNDBERG: I thought you were going to
18 give me --
19 CHAIRMAN DOUGLASS: The time is up under the rule and
20 the extensions are up for the proponents and the
21 opponents; am I right? All the time has been used except
22 to close. Now he can defer to you in the close, if he
23 likes, Commissioner Sundberg. Commissioner Nabors to
24 close. He could yield time to you.
25 COMMISSIONER NABORS: Let me yield a minute to you,
1 Commissioner Sundberg. I just need a couple of seconds to
3 CHAIRMAN DOUGLASS: Commissioner Sundberg, he yields
4 to you for a minute.
5 COMMISSIONER SUNDBERG: Thank you, Commissioner
6 Nabors. Everyone who has stood up says that broadening
7 the tax base in this state is not only a good thing but
8 essential. This is the only proposal we have before us
9 that permits us to do that. All of the other tax
10 proposals have either created more exemptions at the local
11 level or has relieved local government of tax obligations
12 and shifted them to the state.
13 For us to ignore, to ignore this issue -- well I
14 can't find the word for it except -- I must say this, and
15 Commissioner Barnett is very persuasive, she's very
16 familiar with these issues. But she said two things that
17 convinced me to a moral certainty that you need to support
19 She says, How will the Legislature deal with 4- or
20 500 exemptions that exist in our sales tax at this point?
21 Is that any kind of sensible tax program? No. She says,
22 The experience that we had from the sales tax on services,
23 it took them a year and a half to do the rules. I don't
24 know how that can be, it was only in force for six months.
25 And it created an enormous amount of revenue for this
1 state in the six months that it was in force. In any
2 event, if we ignore this opportunity, we will have clearly
3 failed the people of this state.
4 CHAIRMAN DOUGLASS: Commissioner Nabors, you have one
5 minute to close.
6 COMMISSIONER NABORS: Quickly, several points,
7 Commissioner Barnett. There is a story behind every
8 exemption. And a lot of those stories aren't very pretty.
9 So we need to have those out in the open.
10 Commissioner Morsani, we're not going to be the one
11 that's going to ponder with the choosing that's going to
12 be done. In the two-year process the Legislature has,
13 they'll do it and it's their job to do it. If in two
14 years, in two years, if the Legislature cannot sort this
15 out, cannot sort this out and deal with the issues, we all
16 need to move to Bosnia. We can do this in two years.
17 There is no fundamental reason why not. They cannot do
18 it, they need the people to instruct them to do it.
19 Commissioner Argiz, if the Catholic Church cannot get
20 back in their proposal in the legislative process, it's
21 inconceivable to me. Everybody that has an exemption is
22 going to be at risk, but everybody has got an opportunity
23 to talk to the Legislature to get it back in. If it
24 serves a public purpose, it will get back in. This is the
25 most fundamental thing we can do for the next 20 years.
1 If we don't do it, it's not going to get done. It's not
2 going to get done, and we're going to live in a state we
3 all love and grew up in and we're not going to recognize
4 it in the next 20 years.
5 I urge you to vote for the proposal.
6 CHAIRMAN DOUGLASS: All right. We'll vote on
7 Committee Substitute for Proposal No. 6. Open the
9 (Vote taken and recorded electronically.)
10 CHAIRMAN DOUGLASS: Lock the machine and announce the
12 READING CLERK: 15 yeas, 16 nays, Mr. Chairman.
13 CHAIRMAN DOUGLASS: All right. By your vote, you've
14 defeated this proposal. Committee Substitute for
15 Proposals 49, 103 and 185 by the Committee on Finance and
16 Taxation, Article VII, and Commissioners Anthony,
17 Henderson and Mills. Read it, please.
18 READING CLERK: Committee Substitute for Proposals
19 No. 49, 103, and 185; a proposal to revise Article VII,
20 Section 3, Florida Constitution; revising the requirements
21 for exempting municipally-owned property; allowing the
22 Legislature to exempt from taxation property owned by a
23 municipality or special district and used for airport,
24 seaport, or public purposes, as defined by law, and uses
25 that are incidental thereto.
1 CHAIRMAN DOUGLASS: There is an amendment on the
2 table. Commissioner Scott, you're recognized from Style
3 and Drafting.
4 COMMISSIONER SCOTT: Mr. Chairman, this proposal was
5 like 28 to 4, we debated it thoroughly before. The vote
6 was like 28 to 4.
7 What it does is it protects the county immunity but
8 allows municipalities as provided by law, as he read in
9 the title, and other special districts, airports,
10 seaports, to have -- to have exemptions from taxation.
11 And the reason this is here is that the courts have said
12 that this cannot be dealt with by the Legislature, it's
13 very complicated because of some court rulings. So we
14 need to have a constitutional amendment which would level
15 the playing field and allow the Legislature to deal with
16 this issue.
17 There is an amendment from Style and Drafting which
18 clarifies the discussion. When we finish this,
19 Commissioner Lowndes had an amendment. And it's pretty
20 simple if we could read that amendment.
21 CHAIRMAN DOUGLASS: All right. Amendment on the
22 table by Commissioner Scott. Please read the amendment.
23 READING CLERK: By Commissioner Scott, the following
24 amendment: On Page 1, Lines 23 and 24, strike all of said
25 lines and insert "purposes as defined by general law, and
1 uses that are incidental thereto, may be exempted from
2 taxation as provided by general law. A municipality".
3 COMMISSIONER SCOTT: This is a clarifying amendment,
4 as we discussed when we were here before. We put in two
5 places "as defined by" and the second one "as provided by"
6 general law to make it clear that both airport, seaport
7 public purposes and uses incidental thereto can be defined
8 by the Legislature. And that's all it is.
9 CHAIRMAN DOUGLASS: Commissioner Brochin on the
11 COMMISSIONER BROCHIN: Reading this, can an airport
12 or a seaport be exempted by the Legislature, and as
13 defined by law, even though the airport or seaport does
14 not serve a public purpose? The way I read it, that can
15 be done.
16 COMMISSIONER SCOTT: Well, we debated this
17 thoroughly, remember, Commissioner Mathis and others, that
18 we think airports and seaports in Florida are public
19 purposes and very vital to our whole economy and travel to
20 the state. So, yes, in that sense if it is an airport or
21 seaport, as defined by general law, then it could be
22 exempted, but not if it's an airport that is not somehow
23 related to a public purpose.
24 COMMISSIONER BROCHIN: The reason I ask, Commissioner
25 Scott, is that it doesn't read that way to me. It reads
1 that airport, seaport, or public purposes may be exempted
2 from taxation and therefore the Legislature could be
3 permitted under this constitutional authority to exempt
4 from taxation an airport, seaport, even though it doesn't
5 serve a public purpose.
6 It seems to me we ought to write something in that
7 requires, if there is going to be an exemption, it ought
8 to be by public purposes. And I was hopeful Style and
9 Drafting would make an adjustment, but apparently it still
10 reads the three in the alternative. So that's why I ask
11 the questions.
12 I understand that the Legislature may exempt an
13 airport or seaport and may determine it to be a public
14 purpose, but my reading of this constitutional language
15 also allows the Legislature to exempt an airport and a
16 seaport even though it doesn't serve a public purpose
17 because you have the word "or" in there.
18 COMMISSIONER SCOTT: Yeah, I think it's covered --
19 CHAIRMAN DOUGLASS: Just a moment, Commissioner
21 COMMISSIONER SCOTT: Commissioner Brochin I know has
22 been opposed to this proposal in general, but I really
23 think that it is covered and particularly where it says,
24 as we have added in this amendment, may be exempt from
25 taxation as provided by general law.
1 CHAIRMAN DOUGLASS: All right. Commissioner -- this
2 is on the amendment. Does everybody understand the
3 amendment? Any further debate or questions on the
4 amendment? All right. All in favor of the amendment, say
5 aye; opposed?
6 (Verbal vote taken.)
7 CHAIRMAN DOUGLASS: The amendment is adopted. Now
8 we're on the proposal as amended. Commissioner Scott,
9 would you care to have anything further to say now that
10 it's amended?
11 COMMISSIONER SCOTT: Just what we said before. I
12 really kind of already made an argument. If there is some
13 debate, then maybe I'd reserve time to close.
14 CHAIRMAN DOUGLASS: Commissioner Lowndes.
15 COMMISSIONER LOWNDES: I'd just like to speak in
16 favor of this amendment. My sense about this problem has
17 been it's been a serious problem of government taxing
18 government and the Legislature has tried to solve this
19 problem, but the courts have told the Legislature they
20 can't solve the problem. And this amendment will -- the
21 courts have said the Legislature can't solve the problem
22 because the Constitution doesn't give the Legislature the
23 power to solve the problem.
24 This amendment gives the Legislature the power to
25 solve the problem. It gives the Legislature the power to
1 put the municipally-owned airports and seaports and those
2 that are in special districts on the same footing as those
3 which are now owned by the counties because those airports
4 which are owned by the counties are exempt from taxation.
5 This would allow the Legislature in its wisdom to exempt
6 those owned by the cities to be exempt from taxation.
7 So I think it's a very good proposal. I think it's a
8 very necessary proposal and I would hope that you would
9 pass it.
10 CHAIRMAN DOUGLASS: All right. Commissioner
11 Evans-Jones, are you a proponent?
12 COMMISSIONER EVANS-JONES: No.
13 CHAIRMAN DOUGLASS: Opponent. You're recognized.
14 COMMISSIONER EVANS-JONES: I wish you-all would
15 listen just a minute here. You're talking about more
16 exemptions. We talked a lot about exemptions with
17 Commissioner Nabors' bill and about fairness and equity.
18 This is a terrible, terrible proposal.
19 The property appraisers throughout the state tried to
20 be able to tax the things by the county, but it was turned
21 down. What you're doing is you're competing with private
22 businesses. You can drive a truck through these loopholes
23 here. People who are in private business should be taxed.
24 I mean, that's just the bottom line.
25 And if you're going to just allow all of these
1 exemptions, what's going to happen? We're going to have
2 more and more property taxes because that's the only
3 answer. And I frankly am sick and tired of all these
4 exemptions and I don't think it's fair. But I think the
5 lobbyists are very strong and very powerful and a lot of
6 them get their way. I think this would be a big mistake
7 for us to put this on the ballot and I strongly disapprove
8 of it.
9 CHAIRMAN DOUGLASS: Commissioner Mathis.
10 COMMISSIONER MATHIS: I have been in the unique
11 position to represent businesses that were trying to do
12 business with the Greater Orlando Aviation Authority. One
13 of those businesses was TGIF Friday's out of Dallas,
14 Texas, and the other was McDonald's out of Oakbrook,
16 We were looking at bidding on a proposal for a food
17 and beverage concession in the airport. There is a TGIF
18 Friday's 3 miles outside the airport. The question was,
19 to the corporate officers at TGIF Friday's, would a TGIF
20 Friday's inside the airport compete with an off-site TGIF
21 Friday's. They said, No, the market is different.
22 Now I know a little bit about business, but I know in
23 the restaurant business there are three issues; location,
24 location, location. And in that particular instance, if
25 those corporate officers could see that on-site airport
1 businesses were not in competition with off-site airport
2 businesses, I think they had a reasonable basis to do it.
3 I have not seen in my dealings with small and
4 minority businesses, minority businesses saying that I
5 have got an off-site business so I don't want to be on
6 airport property. It's been quite the opposite. They are
7 going with the chance of being on airport property.
8 There is a Chili's in the terminal at the Aviation
9 Authority. They also competed for Air Site 3 food and
10 beverage concession. They didn't even see that as
11 competition. Airports are unique businesses and should be
12 viewed as such and they do serve a public purpose in that.
13 Those issues that they deal with affect the economic
14 development of our state 20, 30 years out. And we need to
15 give them the assurance that they will be treated on an
16 equal basis within the state and to be able to compete
17 globally with other airports.
18 And this proposal does that and I would urge you to
19 support it.
20 CHAIRMAN DOUGLASS: Opponents, you have some time
21 left. The proponents have 20 seconds. Commissioner
22 Brochin, are you an opponent?
23 COMMISSIONER BROCHIN: I am.
24 CHAIRMAN DOUGLASS: You may speak.
25 COMMISSIONER BROCHIN: First of all, I'd like to say,
1 Commissioner Scott, I have not opposed this from the
2 outset. Not only did I vote for it the first time, I
3 spoke in favor of it.
4 My concern and the reason I am voting against it now
5 is I find offensive in our Constitution the inclusion of
6 airports and seaports as somehow being singled out. If we
7 are going to create exemptions, which I think is a good
8 thing to do, if two things are met. One, it deals with a
9 government taxing a government, as Commissioner Lowndes
10 said. And, two, it serves a public purpose.
11 There are a lot of other industries that could serve
12 public purposes that may be appropriate for exemptions.
13 Airports and seaports may not be an exclusive list. It is
14 just the airport and seaport people are here. And I think
15 we are making a terrible mistake in writing a Constitution
16 that starts to put into it who we think at this moment on
17 this day should be in there without considering from a
18 broader purpose.
19 If we are going to write tax policy in the
20 Constitution, let's at least be consistent with it. Let's
21 talk about exempting municipalities, special districts,
22 putting them on a level playing field, if they serve a
23 public purpose, period. Not if it is an airport that
24 drives the economic engines, not if it is a seaport, not
25 if it's tourism, not if it's agriculture, not if it is any
1 other group that may drive the engines of this state.
2 The defining clause and I think the threshold should
3 be public purpose. And if those two and three words of
4 airport and seaport come out, this is a good proposal. If
5 they stay in, it is a bad proposal and that's why I am
6 voting against it.
7 CHAIRMAN DOUGLASS: All right. The proponents to
8 close, the introducer Commissioner Mills. The time is up
9 for the proponents and the opponents.
10 COMMISSIONER MILLS: Mr. Chairman, the two of us as
11 introducers will split it. I will do one minute.
12 And in one minute I will say that this both meets a
13 public purpose and prevents duplication in taxation. And
14 with whom are we competing? We are competing with North
15 Carolina, New Orleans, and the rest of the world. When we
16 look back at this in 20 years, this will look very good.
17 We give tax opportunities to agriculture, to
18 construction, tourism, the three major legs of our stool.
19 Guarantee you, this is the fourth leg of our stool, trade,
20 guarantee you. This is one of the best incentives you can
22 And by the way, I have a letter, which obviously I
23 will not read in full in 30 seconds, but deals with a
24 comparison of how our ports and airports are treated
25 vis-a-vis other states. In this survey 20 other seaports
1 and ports in other states pay no taxes; half of ours do.
2 End of case.
3 CHAIRMAN DOUGLASS: Commissioner Henderson for the
4 other minute.
5 COMMISSIONER HENDERSON: Thank you, to close. And on
6 behalf of Commissioner Anthony who is not here, who has
7 worked so hard on this through the course of these
8 deliberations, I would remind you that Commissioner
9 Anthony is the only local government elected official, and
10 that this solves a major problem of inequity and
11 unfairness between county government and municipal
13 Commissioner Mills talks about how we compete against
14 ourselves with Atlanta and New Orleans and Houston. We
15 compete, ourselves, in Miami against Orlando, against
16 Tampa. There is no reason in the world why the policy of
17 this state for taxation should treat those people
18 differently, those entities differently. Our airports and
19 our ports and other public purposes, counties,
20 municipalities should be a level playing field is the only
21 way for us to competently compete in a global economy.
22 CHAIRMAN DOUGLASS: All right. Are we ready to vote?
23 Unlock the machine and vote.
24 (Vote taken and recorded electronically.)
25 CHAIRMAN DOUGLASS: Has everybody voted? Lock the
1 machine and announce the vote.
2 READING CLERK: Twenty-eight yeas, 2 nays,
3 Mr. Chairman.
4 CHAIRMAN DOUGLASS: All right. By your vote you have
5 adopted that proposal. We will now move to, we will move
6 to Proposal 120 by Commissioner Henderson which is in the
7 blue book. And read it, please.
8 READING CLERK: Proposal 20, a proposal to revise
9 Article VII, Section 9, Florida Constitution; providing a
10 statewide millage cap for water management purposes.
11 CHAIRMAN DOUGLASS: There are no amendments on the
12 table at the moment and the proponent is Commissioner
13 Henderson. You are recognized.
14 COMMISSIONER HENDERSON: Thank you, Mr. Chairman.
15 And I promise to be less passionate about this simple
16 issue. All this does --
17 CHAIRMAN DOUGLASS: I should hope so. One thing we
18 did need to comment on, an aside, is that Commissioner
19 Mathis says that with the restaurant that was location,
20 location and location, I suspected that from the quality
21 of some of the food you get in restaurants. That's the
22 last one.
23 COMMISSIONER HENDERSON: Well this issue, sir, is
24 about location, location, location. If you live where
25 most people in the state of Florida do, in four of the
1 water management districts, you have a tax cap or
2 limitation on millage which is the same at 1.0 mills. If
3 you live in this part of the world and west of here, the
4 millage cap is .05.
5 Now why should any of us care about that? It is
6 because all of us in this room are subsidizing that
7 obligation of that water management district, now to the
8 tune of $42 million.
9 The Legislature says they have to set minimum flows
10 and levels for water, that they have to deal with swim
11 plans, they have to deal with cleanup plans and other
12 things, but because they don't have the revenue to do
13 that, the rest of us, the taxpayers of Central Florida are
14 doing that. And the taxpayers of South Florida are doing
15 that, plus taking on their obligation of cleaning up the
17 This is simple tax fairness and equity and it is a
18 little thing that should be cleared up.
19 CHAIRMAN DOUGLASS: Commissioner Thompson as an
21 COMMISSIONER THOMPSON: Yeah, I think raising an ad
22 valorem tax from 1/20 of a mill to one mill is more than
23 just a little thing that ought to be cleared up.
24 Let me clarify for you, folks, that if you pass this,
25 when several of us go home and start talking about these
1 proposals, we are going to be talking real specific to
2 some homeowners and farmers and others about the fact that
3 we came over and we came up with a proposition to raise
4 taxes directly on them. I doubt if any of the rest of you
5 will have that problem.
6 Don't be misled and don't misunderstand, the money he
7 is talking about that's going to the Northwest Florida
8 Water Management District -- and that's a pretty high
9 figure if you ask me, and I'm just going to have to take
10 his word for it -- but it is not coming from the rest of
11 you's ad valorem taxes.
12 If anywhere, and whatever the amount is, and I want
13 to think that it is a lot more modest than that, it is
14 coming from general revenue. And let me tell you
15 something, I served in the Legislature 12 years over
16 there, every year somebody wanted to do this and we said,
17 Listen, just keep your money. And that's what I want to
18 tell you today. Instead of raising my taxes, just keep
19 your money if you are concerned that we are taking it from
21 But I don't think that's the case because I don't
22 think the Legislature has done that and I don't think that
23 the Legislature will do that. I think the Legislature has
24 generated some specific programs like Save Our Rivers and
25 that kind of thing that our water management district
1 participates in just like yours. I think there are other
2 things that have been imposed on our water management
3 district, just like they have been imposed on yours, that
4 ours participates in and funding flows to ours just like
5 it does to the others.
6 So don't be too concerned about money coming out of
7 your pocket to go to Northwest Florida, I can tell you for
8 years the members of the Legislature there have said, Keep
9 your money, don't worry about your money, we don't want
10 it, we have a structure and we are willing to work within
11 that structure.
12 So I recommend to you that you join with me, and I
13 think the Chairman and others, and vote against this
14 proposal that's going to cause us and all of our proposals
15 a lot of trouble when you start to go west of this place
16 that we are sitting.
17 Thank you.
18 CHAIRMAN DOUGLASS: I'm going to yield the chair to
19 Commissioner Langley so that I can debate this. I think
20 this is -- isn't this wonderful? We finally got
21 Commissioner Langley up here. That's because he beat them
22 all in tennis yesterday.
23 (Commissioner Langley assumes the Chair.)
24 COMMISSIONER LANGLEY: Commissioner Riley is
1 COMMISSIONER RILEY: Thank you, Mr. Chairman. As a
2 member of this commission who also heads west, I would
3 like to speak in favor of this proposal. And to remind
4 you that this does not do anything more than take out an
5 inequality that is already in the Constitution.
6 This does not raise the rate in the panhandle of
7 Florida for the water management district. This takes out
8 an inequality in the Constitution that was in there for
9 political reasons. All it does is to allow the
10 Legislature to give equal access to the panhandle as it
11 does to the rest of the state.
12 The panhandle of Florida has the same mandated
13 requirements that every other water management district
14 has, but it has a fraction of the finances to carry out
15 those mandated requirements. The panhandle is
16 experiencing growth, it is experiencing water quantity and
17 water quality problems. And we don't have, we have 20
18 years now where again we will not be able to solve those
20 Let me read you just briefly a little bit of the
21 population changes in the top five counties in this state.
22 Bay County went from -- these are census data from '80 to
23 '96, and this is why we have to have some of these options
24 available. The census went in Bay County from 97,000 to
25 144,000; in Escambia from 233,000 to 277,000; in Leon
1 County from 148,000 to 215,000; in Okaloosa, my county,
2 from 109- to 165-; and in Santa Rosa from 55,000 is 108-.
3 And if you don't think that is not population that
4 needs the water quality and quantity protected, then you
5 are wrong. It does. We need to change this and give this
6 area the same opportunities as the rest of the state.
7 COMMISSIONER LANGLEY: Thank you. A con, an against?
8 CHAIRMAN DOUGLASS: I'm against.
9 COMMISSIONER LANGLEY: I'm sorry, Chairman Douglass
10 is recognized. The against have three more minutes.
11 CHAIRMAN DOUGLASS: All right. I'd like to say as
12 one of the constituents of the member of the Northwest
13 Florida Water Management Board, who the Governor so wisely
14 appointed to that position, Commissioner Riley, that I
15 don't agree with you at all.
16 If in fact what you say is true, I think we should
17 fairly have an amendment adopted, which I'm having
18 prepared, that says this will become a part of the
19 Constitution, provided only that this district votes a
20 majority vote for it.
21 Now if you want to single out one district to punish,
22 in effect in their view, whether it is your view or not,
23 then we ought to at least give them a chance to accept the
24 infliction of the pain because it is going to increase the
25 tax take for this board by fivefold. And as Commissioner
1 Thompson pointed out, we are not receiving any money from
2 the rest of the state, nearly so much as other districts,
3 particularly those that have the great burdens of the
4 great populations are.
5 And those of us that live in this district do feel
6 that this singles out our district, who does not need this
7 revenue to control the water problems that we have. If we
8 do, then we will get them. Thank you very much.
9 COMMISSIONER LANGLEY: Is there another pro, for the
10 amendment? If not, Commissioner Connor is recognized.
11 COMMISSIONER CONNOR: In opposition, Mr. Chairman, I
12 would suggest if your real concern is tax equity and tax
13 fairness, then we should reduce the millage rate for the
14 rest of the state to conform to that of the Northwest
15 Florida Water Management District.
16 Look, there are more ways to achieve tax equity than
17 just by raising everybody's taxes. We can achieve tax
18 equity by lowering taxes as well. And I can tell you from
19 experience on the campaign trail, that people despise the
20 assessments levied by unelected, unaccountable bureaucrats
21 who spend money on planes and buildings and enlarging the
22 bureaucracy as opposed to providing real relief and real
23 services for the people. So if you want to achieve tax
24 equity, I'll support an amendment that would lower the
25 millage rate to .05 mills for the whole state.
1 COMMISSIONER LANGLEY: Any other questions or
2 discussion? The amendment, Mr. Chairman.
3 COMMISSIONER CONNOR: I'd like an opportunity to
4 write it, to get that amendment in process.
5 COMMISSIONER LANGLEY: Certainly. Commissioner Mills
6 is recognized for a motion.
7 COMMISSIONER MILLS: Point of order.
8 COMMISSIONER LANGLEY: Yes, sir.
9 COMMISSIONER MILLS: I always wanted to call a point
10 of order with you in the chair.
12 COMMISSIONER LANGLEY: You will get a ruling.
13 COMMISSIONER MILLS: I would not doubt that.
14 And I think under the procedure we have established,
15 we haven't been amending during final debate and the
16 ten-minute limit. So if there are going to be a series of
17 amendments, then I would suggest that we temporarily pass
18 this, come back to it, let people prepare amendments,
19 other than that -- because I think your ten minutes have
20 almost run.
21 COMMISSIONER LANGLEY: You are right, there is about
22 30 seconds left and about two minutes for any proponent.
23 But is there a motion to temporarily pass it until we have
24 the amendment?
25 COMMISSIONER MILLS: If there are no amendments, you
1 can vote on it.
2 COMMISSIONER LANGLEY: Well the Chairman has an
3 amendment being prepared. So without objection we will
4 temporarily pass and move on to the next item. We are
5 going now to Proposal 49, 103, Commissioner Anthony's. Is
6 that done? Where are we going, Commissioner Mills?
7 COMMISSIONER MILLS: Mr. Chairman, we are now on the
8 local government section and we have in this section three
9 proposals. And I am looking for Commissioner Barnett.
10 COMMISSIONER LANGLEY: I understand we are going to
11 Proposal No. 31 and 55 by the Committee on Judicial and
12 Commissioners Sundberg and Zack.
13 COMMISSIONER MILLS: Correct. And I would ask the
14 Chair to recognize Commissioner Barnett to discuss the
15 local government series of issues.
16 COMMISSIONER LANGLEY: Commissioner Barnett is
18 COMMISSIONER BARNETT: Thank you, Mr. Chairman. The
19 first proposal is 31 and 35. This is the Article V cost
20 proposal. Style and Drafting does not have any amendments
21 that we have suggested to this particular proposal. I am
22 unaware of whether there are any member amendments. There
23 may be -- we thought there might be one member amendment.
24 Briefly, I think all of you know what this proposal
25 does. It provides funding for Florida's state court
1 system, the state attorneys, public defenders, court
2 appointed counsel. It deals with funding for clerks of
3 the court, it also deals with counties and provides that
4 they are required to fund cost of construction or lease,
5 maintenance, utilities, security of facilities and the
7 And unless there are any questions from Style and
8 Drafting, I would turn this over to Commissioner Sundberg.
9 COMMISSIONER LANGLEY: Excuse me, Commissioner
10 Barnett, we need to read the amendment, the proposal.
11 Read the proposal.
12 READING CLERK: Committee Substitute for Proposal
13 Nos. 31 and 55, a proposal to revise Article V, Section
14 14, Florida Constitution; providing for salaries, cost and
15 expenses of the judiciary, state attorneys, public
16 defenders, and clerks of the circuit court, and the
17 respective staffs to be funded from state revenues
18 appropriated by general law; providing for counties to
19 fund the cost of construction, maintenance, utilities and
20 security of the facilities for the judiciary, public
21 defenders, state attorneys and clerks of the circuit court
22 and their respective staffs.
23 COMMISSIONER LANGLEY: Is Commissioner Zack going to
24 present this or who?
25 COMMISSIONER BARNETT: Sundberg or Zack.
1 COMMISSIONER LANGLEY: Commissioner Sundberg is
3 COMMISSIONER SUNDBERG: Thank you, Mr. Chairman. I
4 would, if appropriate, Mr. Chairman, I would like to offer
5 that amendment that Commissioner Barnett referred to. It
6 should be on the desk.
7 COMMISSIONER LANGLEY: Is it on the desk? Read the
9 I'm sorry, we don't have it, Commissioner Sundberg.
10 COMMISSIONER SUNDBERG: It should have been on the
11 desk. We did this much earlier this morning.
12 COMMISSIONER LANGLEY: We have it on the desk and I
13 understand it has been distributed to the members' desks.
14 Read the amendment, please.
15 READING CLERK: By Commissioner Sundberg, the
16 following amendment: On Page 2, Lines 21 through 29,
17 delete those lines and insert, "counties shall be required
18 to fund the cost of communication services, existing radio
19 systems, existing multi-agency criminal justice
20 information systems, and the cost of construction or
21 lease, maintenance, utilities and security of facilities
22 for the trial courts, public defenders' offices, state
23 attorneys' offices and the offices of the clerks of the
24 circuit and county courts performing court-related
25 functions. Counties shall also pay reasonable and
1 necessary salaries and costs and expenses of state court
2 systems to meet requirements."
3 COMMISSIONER LANGLEY: Explain the amendment, please,
4 Commissioner Sundberg.
5 COMMISSIONER SUNDBERG: Thank you, Mr. Chairman. If
6 you will recall, an amendment was offered at our last
7 session, at which in fact this proposal was unanimously
8 adopted, it was offered by me to address the issue of
9 whether or not the counties would be responsible for
10 reasonable and necessary salaries, costs and expenses of
11 state's attorneys, public defenders, clerks of circuit
12 court when performing court-related functions.
13 I withdrew that amendment on the premise that there
14 was not, we had hoped to have complete concurrence by the
15 parties involved. We did not have it at that time. Since
16 that time, through the efforts of representatives of the
17 state's attorney and the public defender and the counties,
18 we have arrived at a compromise which is memorialized in
19 this amendment which we offer.
20 And basically rather than saying that the counties
21 will be responsible for salaries, costs and expenses in
22 general of the state's attorneys, public defenders and the
23 clerks when performing judicial duties, the specific
24 expenses or costs or functions for which the counties will
25 be responsible as to state's attorneys, public defenders
1 and clerks is set forth in this amendment.
2 It then eliminates the state's attorneys, public
3 defenders and clerks from that general language that says,
4 that applies now only to the state court system when you
5 are talking about reasonable and necessary salaries, costs
6 and expenses to meet local requirements as determined by
7 general law.
8 COMMISSIONER LANGLEY: Any questions of the sponsor
9 of the amendment? Any questions? Any discussion of it?
10 If not, Commissioner Sundberg -- pardon me, Commissioner
12 COMMISSIONER BARKDULL: I'd like to ask a question of
13 Commissioner Sundberg.
14 COMMISSIONER LANGLEY: The gentleman yields.
15 COMMISSIONER BARKDULL: Commissioner Sundberg, if
16 this language is in there, the Legislature would be
17 prevented or would not have the opportunity to put
18 anything else in there that the counties might be
19 responsible for in the state court system; is that
21 COMMISSIONER SUNDBERG: No, that's not correct.
22 COMMISSIONER BARKDULL: Well this is -- to me, you
23 are identifying those items only that the counties will
24 pay for.
25 COMMISSIONER SUNDBERG: Only with respect to the
1 state's attorneys, public defenders and clerks. And you
2 are absolutely right, it limits those items. It does not
3 limit it with respect to the state court system.
4 COMMISSIONER BARKDULL: Well I don't know what the
5 state court system is because I've never seen a definition
6 of that.
7 COMMISSIONER SUNDBERG: It is defined.
8 COMMISSIONER BARKDULL: And I have some concern, I
9 have a lot of concern about this matter. I did not vote
10 against it last time, but this is obviously statutory
11 stuff we are talking about. And we are going to lock this
12 in the Constitution. And what I'm saying is that when you
13 define these items there, for what the county is going to
14 be responsible for, it removes from the Legislature, in my
15 judgment, the power to add anything else to it.
16 COMMISSIONER LANGLEY: Any other questions of the
17 sponsor of the amendment? Any debate on the amendment?
18 Commissioner Barkdull, do you wish to speak against it any
20 COMMISSIONER BARKDULL: No, sir.
21 COMMISSIONER LANGLEY: All right. Commissioner
22 Sundberg moves the adoption of the amendment. All those
23 in favor say aye; opposed?)
24 (Verbal vote taken.)
25 COMMISSIONER LANGLEY: The amendment is adopted. Is
1 there another amendment?
2 READING CLERK: There are none on the desk,
3 Mr. Chairman.
4 COMMISSIONER LANGLEY: No other amendments? All
5 right. If not, then we are on debate of the bill now, the
6 proposal, and you have -- do you wish further explanation
7 before the debate starts, Commissioner Sundberg?
8 COMMISSIONER SUNDBERG: I don't think that's
9 necessary. It has been recently. As you will recall, it
10 defines those issues that are to be funded by the state,
11 those that, the clerks' functions that are now going to be
12 fee-based and now those things which are to be funded by
13 the counties. And all constituent parties to these
14 funding issues have agreed on this proposal.
15 COMMISSIONER LANGLEY: Anyone wish to speak against
16 the proposal? Anyone in opposition? If not, Commissioner
17 Sundberg moves for final passage of the proposal. The
18 Clerk will unlock the machine and the members will vote.
19 (Vote taken and recorded electronically.)
20 COMMISSIONER LANGLEY: Have all members voted? The
21 Clerk will lock the machine and announce the vote.
22 READING CLERK: Twenty-nine yeas, zero nays,
23 Mr. Chairman.
24 COMMISSIONER LANGLEY: By your vote you have passed
25 the proposal. On request of the Chairman we will return
1 to the water district taxation bill. Yes, Commissioner --
2 COMMISSIONER RUNDLE: Rundle.
3 COMMISSIONER LANGLEY: -- Rundle. I got you mixed up
4 with Hargrett.
5 COMMISSIONER RUNDLE: Let's not use the word target
6 yet, that's coming up.
7 COMMISSIONER LANGLEY: Not target, Hargrett.
8 COMMISSIONER RUNDLE: If I may, I pressed my button
9 but apparently my vote was not accounted for on the board.
10 So I would just like to say that I voted yes.
11 COMMISSIONER LANGLEY: Without objection, show
12 Commissioner Rundle voting aye on that bill.
13 Return now to the other proposition. What was that
14 number, please?
15 (Off-the-record comment.)
16 COMMISSIONER LANGLEY: 120? And Commissioner
17 Douglass is recognized.
18 CHAIRMAN DOUGLASS: I have decided not to offer the
19 amendment and I suggest that we conclude the debate and
20 vote on it.
21 COMMISSIONER LANGLEY: Okay. The sponsor, do you
22 wish to close, Commissioner Henderson?
23 COMMISSIONER HENDERSON: Mr. Chairman, all I want to
24 say is I think you did a fine job as chairman, good to see
25 you up there, and this is a pretty straightforward
2 COMMISSIONER LANGLEY: Let the board show the proper
3 proposal. Do we have the proper proposal on the board?
4 120, show it, please. Okay. The motion has been made by
5 Commissioner Henderson for final passage. The Clerk will
6 unlock the machine and all members voting. This is on the
7 water district bill by Commissioner Henderson, Proposal
8 No. 120.
9 (Vote taken and recorded electronically.)
10 COMMISSIONER LANGLEY: Has every member voted? The
11 Clerk will lock the machine and announce the vote.
12 READING CLERK: Thirteen yeas, 15 nays, Mr. Chairman.
13 COMMISSIONER LANGLEY: By your vote you have rejected
14 this proposal. What's the next proposal, Commissioner
16 (Off-the-record comment.)
17 COMMISSIONER LANGLEY: Commissioner Mills moves 96
18 now. Are you ready for that?
19 COMMISSIONER MILLS: Yes, sir.
20 COMMISSIONER LANGLEY: Commissioner Barnett is
21 recognized. Pardon me, Commissioner, read the proposal.
22 READING CLERK: Proposal 96, a proposal to revise
23 Article I, Section 5, Florida Constitution; prescribing
24 types of communication that are within the purview of the
25 people's right to instruct their representatives.
1 COMMISSIONER LANGLEY: Commissioner Barnett is
2 recognized to explain the proposal.
3 COMMISSIONER BARNETT: Thank you, Mr. Chairman. This
4 is the proposal by Commissioner Nabors. It is designed to
5 allow for ex parte communications by constituents with
6 their local public officials. Style and Drafting has one
7 amendment which should be on your desk. Do you-all have
8 that? Or is it in the package?
9 It is not. It is on your desk because we further
10 amended it from last night. It is white, it's being
11 handed out now. Let me, while you are looking at it, let
12 me go over the changes. I think they are purely
13 technical. First, the Style and Drafting Committee felt
14 that this language more appropriately related to local
15 government and we recommended moving it from Article I,
16 Declaration of Rights, to Article VIII of the Constitution
17 dealing with local government.
18 Secondly, there is language, you will see on the
19 first line, ex parte communications, the people shall have
20 the right to address. We have recommended using the word
21 "address" rather than the word "instruct," which was in
22 the original proposal.
23 And finally, in the original proposal there was
24 language that required it be consistent with ethics laws
25 and open government laws. Concern was expressed by
1 Commissioner Nabors and others that the inclusion of the
2 open government laws might indeed prohibit the very kind
3 of ex parte communication this was designed to, this
4 proposal was designed to facilitate. So the proposal
5 eliminates that and leaves in place, "consistent with
6 ethics laws."
7 And that's the gist of the Style and Drafting
8 Committee proposal.
9 (Chairman Douglass resumes the Chair.)
10 CHAIRMAN DOUGLASS: Commissioner Wetherington, do you
11 have a question?
12 COMMISSIONER WETHERINGTON: I have a question.
13 CHAIRMAN DOUGLASS: Who do you want to address it to?
14 Commissioner Barnett?
15 COMMISSIONER WETHERINGTON: Isn't it Commissioner
16 Nabors' proposal?
17 CHAIRMAN DOUGLASS: Take your pick. Ask the
18 question, we will let one of them answer it.
19 COMMISSIONER WETHERINGTON: Okay, I'll wait.
20 COMMISSIONER BARNETT: I move the amendment.
21 CHAIRMAN DOUGLASS: All right. Any opponents? Read
22 the amendment. It hasn't been read.
23 READING CLERK: By the committee on Style and
24 Drafting, the following amendment: On Page 1, Lines 10
25 through 25, strike all of said lines and insert, "Section
1 1. Section 7 of Article VIII of the Florida Constitution
2 is created to read: Section 7. Ex parte communications;
3 the people shall have the right to address local
4 government public officials without regard to ex parte
5 communications considerations in a manner consistent with
6 ethics laws."
7 CHAIRMAN DOUGLASS: All right. The amendment has
8 been read. Do you -- anything further on the amendment?
9 If not, we will proceed to vote on the amendment. Who has
10 got a question? Okay. Commissioner Henderson, you are
11 recognized. This is on the amendment.
12 COMMISSIONER HENDERSON: I understand that.
13 CHAIRMAN DOUGLASS: Commissioner Henderson is
15 COMMISSIONER HENDERSON: I know what we are trying to
16 do and support what we are trying to do. Can't we just
17 say, address the local government officials on all
18 matters, and not have the issue of ex parte communications
19 or the ethics consideration? Does that not cover it? I
20 mean, I understand the issue. I'm just asking the
22 CHAIRMAN DOUGLASS: I don't know if your mic is on.
23 Do you understand the question? Who wants to answer it,
24 Commissioner Barnett or Commissioner Kogan or Commissioner
25 anybody? Commissioner Kogan.
1 COMMISSIONER KOGAN: Commissioner Henderson, this
2 stems from an opinion written by the Florida Supreme Court
3 a number of years ago which prohibited this type of
4 activity. If you strike out, in my humble opinion, "to ex
5 parte communication considerations," you are back where
6 you started from before.
7 Because basically we ruled that these ex parte
8 communications were not proper because the board was then
9 sitting in a quasi-judicial mode and therefore ex parte
10 communications would not be allowed. So by taking that
11 out, you are just killing it completely and it won't
12 accomplish the purpose that it's being offered for.
13 I'm not going for or against, I'm just explaining
14 what the problem is.
15 CHAIRMAN DOUGLASS: Commissioner Henderson, does that
16 answer your question?
17 COMMISSIONER HENDERSON: Yes, I think you answered
18 the question. So this accomplishes the purpose of
19 overruling Snyder.
20 COMMISSIONER KOGAN: Right, it overrules Snyder.
21 CHAIRMAN DOUGLASS: The amendment is what we are on.
22 Any further questions or discussion on the amendment?
23 Commissioner Zack, of Commissioner Kogan. Commissioner
24 Kogan, do you yield for a question, please?
25 COMMISSIONER ZACK: The opinion which this amendment
1 is trying to deal with, is there anything that has come to
2 light that would indicate that a commission would still
3 not be acting in a quasi-judicial role when they are going
4 through these deliberations that would suggest a reason to
5 amend what the court has done?
6 COMMISSIONER KOGAN: Now you are asking me to give a
7 legal opinion on something that may come before us. I
8 don't know.
9 COMMISSIONER ZACK: I am wondering if that is a
11 COMMISSIONER KOGAN: Well, you know, anything is a
13 COMMISSIONER ZACK: Commissioner Nabors is willing to
14 answer it and I would prefer not to have the court in any
15 way compromised.
16 CHAIRMAN DOUGLASS: I was about to say, Commissioner
17 Zack and Commissioner Kogan, if he gives a wrong answer,
18 you may overrule him.
19 COMMISSIONER KOGAN: It is not that, I just wanted to
20 explain what was behind this particular amendment, they
21 wanted to overrule the Snyder case. And the way the
22 amendment is now, it appears that it effectively overrules
23 the Snyder case. But if you take it out, I don't think
25 CHAIRMAN DOUGLASS: If you want to overrule Snyder,
1 you pass the amendment, is that --
2 COMMISSIONER KOGAN: It has that effect of doing
4 CHAIRMAN DOUGLASS: Commissioner Nabors, did you want
5 to --
6 COMMISSIONER ZACK: If Commissioner Nabors would
7 explain why Snyder in fact should be overruled. I
8 remember some of the debate that we heard earlier, but we
9 have a situation here where it appears that you have a
10 Government in the Sunshine issue and I'm seriously
11 concerned about these ex parte communications.
12 COMMISSIONER NABORS: Let me answer -- let me answer
13 the specific question.
14 CHAIRMAN DOUGLASS: Point of order, Commissioner
16 COMMISSIONER MILLS: If we are going to try to keep
17 on track, pass the amendment, debate the bill.
18 CHAIRMAN DOUGLASS: We are on the amendment and I
19 think our time has expired. Everybody get ready to vote
20 on the amendment. All in favor of the amendment say aye;
22 (Verbal vote taken.)
23 CHAIRMAN DOUGLASS: We have adopted the amendment.
24 Now we can debate the issues you are trying to debate.
25 Commissioner Wetherington, you are recognized. Opponent
1 or proponent?
2 COMMISSIONER WETHERINGTON: I want to ask a question.
3 CHAIRMAN DOUGLASS: Who is a proponent? I'd like to
4 have the proponents first. Commissioner Lowndes.
5 COMMISSIONER LOWNDES: I'd like to speak in favor of
6 this proposal. You know, one of the things that really
7 has upset the people in local government, particularly
8 county commissioners who for years have been able to
9 discuss with their constituents land use problems, which
10 is what they seem to involve a great deal of their time
11 with, suddenly have found out as a result of rulings from
12 the court they no longer can discuss with their
13 constituents land use problems. It has irritated the
14 constituents and handicapped the county commissioners and
15 really done nobody any good.
16 I think that this proposal came to us initially from
17 the chairman of the county commission in Seminole County,
18 who feels that the county commission has not only been
19 handicapped by the ruling of the Supreme Court on ex parte
20 considerations, but people don't understand why if they
21 vote for a county commissioner and somebody wants to build
22 a 7-11 next door, they can't go talk to their county
23 commissioner about it.
24 It has changed what's been the custom in Florida for
25 as long as I have practiced law and I think it has caused
1 a lot of problems so I would urge you to adopt this
3 CHAIRMAN DOUGLASS: Now your question, Commissioner
4 Wetherington. You may address it to a proponent.
5 Commissioner Lowndes, do you yield for a question from
6 Commissioner Wetherington?
7 COMMISSIONER WETHERINGTON: This decision that came
8 about involved a situation where people go in zoning
9 matters, whether the county commission is sitting in a
10 zoning capacity, passing on multimillion dollar issues,
11 and meeting behind closed doors with lobbyists and other
12 people trying to affect the rights of other people. And
13 the court simply said that when you are sitting in that
14 capacity and you are affecting the rights of people, it
15 shouldn't be ex parte.
16 Now is the effect of this proposal to allow that kind
17 of thing, which many times is called corruption,
18 because -- that's exactly what it is called, because
19 people get back there with the monied interests and they
20 go and put the lobbyists in with the county commissioners
21 and they make these zoning decisions and they are ex parte
22 and nobody is hearing what's going on. I think that's
23 terrible. I don't think that should be permitted. And if
24 that's what this proposal is, I think it is outrageous.
25 COMMISSIONER LOWNDES: If I can take that as a
1 question --
2 CHAIRMAN DOUGLASS: You may take it as a question
3 from the court.
4 COMMISSIONER LOWNDES: -- I assume the question is
5 what is the effect of this law? And I submit to you the
6 effect of this law is to put things back the way they've
7 always been in Florida. And, you know, county
8 commissioners, or the city commissioners for that matter,
9 not only talk to lobbyists, they also talk to people that
10 voted for them.
11 You know, it's very intimidating for somebody from
12 the neighborhood to show up at a county commission meeting
13 where there are lawyers and people are going to put them
14 under oath and one thing or another. It turns the public
15 off. The public feels like they have been deprived of a
16 right they have had for a long time. And the county
17 commissioners feel like they've been deprived.
18 I don't think that the effect of this bill is to
19 prefer special interests, whatever they are, or lobbyists
20 or wealthy folks. I think the effect of this bill is to
21 put things back that worked well before the decision.
22 CHAIRMAN DOUGLASS: All right. We have an opponent.
23 Question from Commissioner Zack to Commissioner Nabors.
24 COMMISSIONER ZACK: Commissioner Nabors, on the
25 Ethics Commission we had a situation where people used to
1 try to communicate with members of the Ethics Commission
2 about cases that were pending. And we ultimately decided
3 that we were acting in a quasi-judicial role and that we
4 would advise anybody who did that that, one, if they in
5 fact succeeded, we would recuse ourselves; and, two, that
6 we would not allow that because of the quasi-judicial
7 nature of what we were doing.
8 I don't see the distinction in what you're seeking to
9 achieve. I'm not sure -- is there a distinction? Let me
10 start with that. I have several questions.
11 COMMISSIONER NABORS: Well, in the first place, this
12 only applies to local government officials. It wouldn't
13 apply to the Ethics Commission.
14 And I agree with what Commissioner Lowndes says.
15 You're dealing with an area that, until these cases,
16 historically in Florida, historically in Florida they were
17 considered legislative-type decisions. And there was a
18 dialog between the citizens and the elected officials in
19 terms of how they felt about the decision they made.
20 This has nothing to do with the Sunshine Law.
21 Nothing here affects the prohibition for two county
22 commissioners getting together and talking about something
23 that they may take foreseeable action. This purely
24 relates to the relationship between the citizen and their
25 local government official.
1 Secondly, it has nothing to do with changing the
2 nature of the proceedings. We were surgical. It doesn't
3 go back to the fairly debatable rule. It's still a
4 quasi-judicial proceeding based on substantial, competent
5 evidence. So it's surgically done.
6 But it is true, to answer your question, it is true
7 it would allow a person at the 7-11 to talk to a county
8 commissioner about how he felt in a zoning matter.
9 COMMISSIONER ZACK: Another question, sir. I
10 strongly believe in representative government. But is
11 there anything that if this matter is defeated would
12 prohibit a commissioner who got this phone call from a
13 constituent saying, You know, Sam, I'm going to have to
14 rule on this and I really appreciate your interest and I'm
15 very interested in what you have to say, but it needs to
16 be in front of the commission so that I can rule on it and
17 listen to what everybody has to say in the public eye.
18 COMMISSIONER NABORS: That would be the choice of
19 that local official.
20 COMMISSIONER ZACK: And they could do that --
21 COMMISSIONER NABORS: Absolutely.
22 COMMISSIONER ZACK: -- if this was defeated?
23 COMMISSIONER NABORS: They could do it even if this
25 COMMISSIONER ZACK: No further questions.
1 CHAIRMAN DOUGLASS: Now we're on the proposal. Is
2 there an opponent? Commissioner Scott, you're an
3 opponent? You're a proponent. Opponent? Commissioner
5 COMMISSIONER WETHERINGTON: If you put this in the
6 Constitution, what you're saying is, I take it, assuming
7 I'm understanding it right, that there is no way we can
8 stop what's been going on in zoning in the state of
9 Florida in a lot of instances.
10 The monied people are getting together with county
11 commissioners behind closed doors and talking about
12 matters that they're going to be ruling on that affects
13 millions of dollars and affects the entire community. And
14 you're saying that's okay. That's wrong. The Supreme
15 Court decision on this matter was absolutely correct in
16 the first instance.
17 If you're talking about affecting people's rights by
18 making major zoning decisions, that ought to be done with
19 everybody who wants to come down to the county commission
20 and saying anything they want to say, but saying it with
21 everybody else present so the people on the other side can
22 rebut it. Why are we now going to reinstall something
23 that is the perfect basis for corruption and put it in the
24 Florida Constitution?
25 I think this is -- I cannot imagine, Commissioner
1 Nabors, why in the world we would want to do this. I
2 think it is a terrible mistake and I don't think there is
3 any way in the world we can defend this.
4 CHAIRMAN DOUGLASS: All right. Commissioner Scott
5 now as a proponent. You're next, Commissioner Henderson.
6 You've got two minutes.
7 COMMISSIONER SCOTT: This is exactly the opposite of
8 what Commissioner Wetherington is saying. What this is
9 saying is if they're going to put in in Cooper City, in
10 Broward County, or Kendall or wherever something that's
11 going to affect their environment, maybe the city wants to
12 put in some sort of a waste-burning plant without
13 scrubbers, et cetera, et cetera, and the people there
14 can't go talk to their county commissioner, whether it's
15 single member or whatever. In Dade County maybe it's
16 single member. They can't go talk to Laurie Parrish about
17 the matter, and that's ridiculous. And that's what we're
18 trying to address.
19 If somebody is going to be corrupt and they are going
20 to meet and do whatever, then they are going to be
21 violating some law, that is nothing that we are concerned
22 about here. We're concerned, but it lets everybody else
23 have a chance to talk to their county commissioners. And
24 this has been one of the most hotly -- I heard more about
25 this than probably any other local government issue in the
1 last several years. And I would urge you to adopt this.
2 It is exactly opposite of some sort of sinister,
3 closed door, lobbyist-special interest deal.
4 CHAIRMAN DOUGLASS: Commissioner Henderson was next
5 and he has just a little bit of time. And, Commissioner
6 Sundberg, it seems like you always get up when there is no
7 time left. Commissioner Henderson, you're recognized.
8 COMMISSIONER HENDERSON: Thank you, Mr. Chairman.
9 This measure, as revised, is very narrowly and surgically
10 precise in its drafting.
11 And it really will -- I can't tell you how much in
12 the last few years this wall of separation has gone up
13 between local government officials and the public. What
14 happens in reality is that developer is in city hall
15 working with staff, putting everything together, behind
16 closed doors, nobody knows about it, and then, pop, here
17 it is on the zoning agenda. The public finds out about it
18 and they call the city commissioner who says, I can't talk
19 to you about it.
20 This has caused all kinds of problems. It also
21 alleviates -- what was also done kind of in the old days
22 where people could get out there and settle neighborhood
23 disputes, get everybody together, get the neighbors
24 together, work it out, come back in the city commission or
25 county commission chambers and say, This is where we are.
1 This is very narrowly drawn to accomplish that purpose.
2 CHAIRMAN DOUGLASS: Commissioner Sundberg has a
3 question for you.
4 COMMISSIONER SUNDBERG: Would the commissioner yield
5 for a question?
6 COMMISSIONER HENDERSON: With great trepidation.
7 COMMISSIONER SUNDBERG: Under this proposal, and
8 let's assume you are a county commissioner --
9 COMMISSIONER HENDERSON: I don't want to go there
11 CHAIRMAN DOUGLASS: Probably won't.
12 COMMISSIONER SUNDBERG: -- I'm a principal in some
13 sort of development that is regulated by the county.
14 Under this proposal, can I come to you in private, in your
15 home, in your office, in a bar, and say, Commissioner
16 Henderson, I want to tell you about this, and I give you
17 absolutely total misinformation. You know, whether I'm
18 doing it deliberately or I just don't know any better.
19 And I give you total misinformation about this.
20 Are you obliged as a commissioner when you get to the
21 public hearing to say, by the way, I want to tell you that
22 Sundberg came to see me and he told me X. Let's test
23 that, is that correct? Are you obliged to do that under
24 this proposal?
25 COMMISSIONER HENDERSON: I'm not obliged to say that,
1 but I'll tell you the reality. The reality is the
2 decision still has to be made based upon the record of
3 what goes on in those chambers at that time. And it's
4 reviewed whether or not there is competent, substantial
5 evidence to support that decision. And I'll tell you the
6 other thing --
7 COMMISSIONER SUNDBERG: There is some competent
8 substantial evidence.
9 COMMISSIONER HENDERSON: I'll tell you the other
10 thing, Commissioner Sundberg, if I recognize that to be
11 misleading information, I would love to be able to tell my
12 other commissioners about it, but I couldn't do that
13 because of the Sunshine Law. I might call one of my local
14 citizen supporters down the road and say, Here are the
15 telephone numbers of the other commissioners, you better
16 start working on this problem.
17 CHAIRMAN DOUGLASS: All right. Time is up. Somebody
18 gets to close. Commissioner Nabors closes.
19 COMMISSIONER NABORS: Commissioner Wetherington, let
20 me tell you, in another lifetime, which is one of the
21 reasons I look so raggedy, I was a county attorney for 15
22 years, under the old system. I never saw, under the old
23 system, the kind of corruption you're talking about.
24 Maybe it's different in other areas of the state, I never
25 saw that state. I want to reassure you there.
1 Secondly, if you're talking about high-paid
2 lobbyists, we put in here that it has to be consistent
3 with ethics laws. There can be laws dealing with
4 lobbyists and general laws dealing with issues like that.
5 This goes to the fundamental issue of the relationship
6 between citizens talking to their elected officials.
7 CHAIRMAN DOUGLASS: Question, Commissioner
9 COMMISSIONER WETHERINGTON: You didn't see any. Were
10 you at the meetings between the county commissioners and
11 those people when they were meeting in private with the
12 county commissioners?
13 COMMISSIONER NABORS: I knew everything that was
14 going on in my county. If there had been something going
15 on, I would have smelled and known about it.
16 COMMISSIONER WETHERINGTON: We need you down in Dade.
17 COMMISSIONER NABORS: Don't hold your breath.
19 CHAIRMAN DOUGLASS: I don't know how to take that; do
21 All right. Is everybody ready to vote on this? If
22 so, unlock the machine and we'll vote on Proposal No. 96.
23 (Vote taken and recorded electronically.)
24 CHAIRMAN DOUGLASS: Lock the machine, announce the
1 READING CLERK: Twenty-two yeas, 7 nays,
2 Mr. Chairman.
3 CHAIRMAN DOUGLASS: All right. By your vote you have
4 passed No. 96. We will now go to Proposal No. 99 by
5 Commissioner Langley.
6 Commissioner Barnett, do you have an amendment or do
7 you want to explain it from Style and Drafting; which is
9 COMMISSIONER BARNETT: I just want to explain it.
10 CHAIRMAN DOUGLASS: Very well. Commissioner Barnett,
11 you're recognized to explain this.
12 COMMISSIONER BARNETT: I just wanted to let you know
13 that Style and Drafting had reviewed this particular
14 proposal and we do not have -- there are no Style and
15 Drafting amendments. This is the proposal, as you said,
16 that Commissioner Langley has that provides that counties
17 and municipalities are not going to be bound by agency
18 action or administrative rule that requires the local
19 government to spend money.
20 CHAIRMAN DOUGLASS: So it's the unfunded mandate
21 thing, is that it, Commissioner Langley? We discussed
22 this before. All right. Now, I recognize a proponent.
23 Commissioner Langley, do you want to be heard, please? We
24 haven't read it. It might help if I do that. I do that
25 occasionally, I forget it. Please read it.
1 READING CLERK: Proposal 99, a proposal to revise
2 Article VII, Section 18, Florida Constitution; providing
3 that a county or municipality is not bound by any agency
4 action or administrative rule that requires the
5 expenditure of funds, reduces revenue raising authority,
6 or reduces the percentage of shared state taxes.
7 CHAIRMAN DOUGLASS: All right, Commissioner Langley.
8 COMMISSIONER LANGLEY: Thank you, Mr. Chairman.
9 Basically what this does is apply the same rules about
10 unfunded mandates by the Legislature to the agencies of
11 the state as well.
12 I think I told you once, I chaired the
13 interlegislative committee on rulemaking. And in one
14 year, we overturned 160-some agency rules because of two
15 things; either they had no express authority to make the
16 rules they made, or two, they made rules in spite of the
17 law and in direct contrast with the law.
18 In fact, we found rules with the identical language
19 that had been rejected on the floor of both houses by
20 overwhelming votes. The agencies would turn around and in
21 their sneaky sort of way, though perfectly legal, would in
22 hearings turn around and pass that same language as agency
23 rules. This has the same effect on business and people
24 and municipalities as well as counties as if the law had
25 been passed by the Legislature. So this just makes it
1 uniform and says, Agency, you can't do it either.
2 CHAIRMAN DOUGLASS: All right. Any opponents?
3 Commissioner Nabors.
4 COMMISSIONER NABORS: It may seem odd that -- I'm a
5 local government person, I represent local government.
6 Those of you who know me better, I have got a tattoo of a
7 heart that says Home Rule in it.
8 CHAIRMAN DOUGLASS: Where's the tattoo? We haven't
9 seen it.
10 COMMISSIONER NABORS: You've got to get to know me
11 better, Mr. Chairman.
12 CHAIRMAN DOUGLASS: I'm not sure I want to do that.
14 COMMISSIONER NABORS: The point I want to make is as
15 much as I love counties and cities, they aren't Balkan
16 states. And this is a bad idea. And I think a lot of my
17 counties and cities would like this, but ultimately we're
18 all in this state together in one boat. If there's
19 reasonable regulations that have a statewide impact and
20 they affect counties and cities, so be it. So I would
21 urge you to vote against it.
22 CHAIRMAN DOUGLASS: Is there another proponent? What
23 are you, Commissioner Mills?
24 COMMISSIONER MILLS: Opponent.
25 CHAIRMAN DOUGLASS: Opponent? Okay, Commissioner
2 COMMISSIONER MILLS: Mr. Chairman, briefly, it seems
3 to me that those who like litigation would really like
4 this. This says a county or municipality is not bound by
5 agency action. Who decided that? I guess they do.
6 If they decide they are not bound, somebody has to
7 interpret one of these things: "Reduces the percentage of
8 state tax shared with a county or municipality." That
9 means somebody at the state level decided they were going
10 to reduce the shared taxes, maybe do it for something
11 else, maybe have another priority.
12 "Requires the county or municipality to spend funds
13 or take action requiring an expenditure of funds." I
14 think a lot of environmental regulations might do that.
15 It doesn't say how much, it doesn't say whether it's
16 $1.75, doesn't say who makes the judgment.
17 "Reduces the authority of the county or municipality
18 to raise revenues." Gosh, I mean, what if we reduced --
19 what if somebody wanted to cut taxes. I don't know what
20 this does. This really is enormously -- I'm unsure what
21 this does other than I am sure that it allows localities
22 not to be bound by an agency action.
23 CHAIRMAN DOUGLASS: All right. Now is there another
25 (Off-the-record comment.)
1 CHAIRMAN DOUGLASS: Beg your pardon? You have a
2 question? Question from Commissioner Nabors.
3 COMMISSIONER NABORS: Being the scholar you are, the
4 legal scholar, what would happen under this proposal if
5 the Legislature, through rules by DER was to require that
6 all counties deal with leachate and landfills and do
7 whatever it took to protect the adjoining land, which
8 would require an expenditure of funds?
9 COMMISSIONER MILLS: Well, I thank you for what I
10 think was a compliment. And so I guess the answer is I
11 don't know. But it appears all you said was the magic
12 word, if it requires the expenditure of funds, then they
13 wouldn't have to do it. They are not bound by it. I
14 mean, what you have is an unknown exemption granted to
15 counties in an unknown way to be interpreted by unknown
16 folks, I guess the courts, for unclear reasons.
17 CHAIRMAN DOUGLASS: Commissioner Langley, do you want
18 to respond to that?
19 COMMISSIONER LANGLEY: Yes, Mr. Chairman. I think,
20 you know, believe it or not, yesterday was the first time
21 I had heard Will Rogers' quote by Commissioner Zack about
22 a pretzel being a bread stick twisted by a lawyer. And
23 that's exactly what these two lawyers have attempted --
24 this is very simple. In the example you gave, the
25 Legislature would have had to have met the mandates law in
1 order to have given the agency the authority to make the
2 rule that they had to do away with leachates.
3 These are rules that the agency just happened to come
4 up with, you know, because they think it's the thing to
5 do. They don't necessarily -- if the law had provided
6 that, it would have already met the mandates of the local
7 mandates of revenue and what have you. So, you know,
8 you're inventing ghosts that don't even exist here.
9 CHAIRMAN DOUGLASS: You're a proponent?
10 COMMISSIONER SUNDBERG: I have a question.
11 CHAIRMAN DOUGLASS: All right. A question of
12 Commissioner Langley by Commissioner Sundberg.
13 COMMISSIONER SUNDBERG: Commissioner Langley, is it
14 your understanding of the mandates law that if the
15 Legislature passes a law of general application that may
16 affect municipalities in the same fashion it affects all
17 others, that that is prescribed by or subject to the
18 mandates provision of the Constitution?
19 COMMISSIONER LANGLEY: No.
20 COMMISSIONER SUNDBERG: So let me ask you this
21 question: Let's assume the Legislature says that all
22 persons who have created hazardous waste sites shall be
23 responsible for the cost of cleaning up hazardous waste
24 sites, whether that's Exxon or whether that's your
25 friendly laundry or what have you.
1 Now, under this proposal, is it not correct that the
2 municipality who has created a gigantic hazardous waste
3 site would say, We're not subject to -- and let me go a
4 step further. And it leaves to the agency, to DEP, the
5 responsibility for defining what a hazardous waste site is
6 and what its components will be. They pass a regulation
7 saying that this is what constitutes -- can the
8 municipality say, You can't enforce that regulation
9 against us because you didn't give us any money to clean
10 it up? Is that possible under this provision?
11 COMMISSIONER LANGLEY: No more than it is possible
12 now under the law. The law is already subject to that in
13 Section 18 of Article VII under the unfunded mandates.
14 But if the agency created that rule, without the proper
15 legislative authority, they couldn't do it.
16 COMMISSIONER SUNDBERG: I thought you agreed with me
17 that if it was a law of general application that simply
18 affected local governments as it did all other citizens of
19 this state that it wasn't subject to the mandates
21 COMMISSIONER LANGLEY: That can be overridden by a
22 two-thirds' vote of the membership of each house, as you
23 know, if you know the mandates law.
24 COMMISSIONER SUNDBERG: As you might guess, I'm
25 opposed to this.
1 CHAIRMAN DOUGLASS: All right. Now you want to
2 close? Commissioner Langley, have you already closed?
3 COMMISSIONER LANGLEY: Yes.
4 CHAIRMAN DOUGLASS: Is everybody ready to vote? If
5 so, open the machine and we'll vote.
6 (Vote taken and recorded electronically.)
7 CHAIRMAN DOUGLASS: Everybody voted? Lock the
8 machine and announce the vote.
9 READING CLERK: Nine yeas, 21 nays, Mr. Chairman.
10 CHAIRMAN DOUGLASS: By your vote you've defeated the
11 proposal. I want to revert now, before we get into the
12 Declaration of Rights, which we'll do after lunch, the
13 only other item left before we get to that, we go back to
14 Committee Substitutes for Proposals 172 and 162 by the
15 Committee on Legislative and Commissioners Thompson and
17 All right. Commissioner Langley.
18 COMMISSIONER LANGLEY: Mr. Chairman, I'd like to tell
19 you, one, that both Commissioner Barnett and I on the
20 amendment by Commissioner Planas were misinformed or not
21 informed. He will not be back here at all today. And any
22 objection that I may have had in regard to his amendment I
23 would like to withdraw.
24 CHAIRMAN DOUGLASS: All right. There is no amendment
25 on the table. We'll proceed to the proposal. This is the
1 proposal, please read it, offered by several
2 commissioners. Please read it.
3 READING CLERK: Committee Substitute for Proposal
4 Nos. 172 and 162; a proposal to repeal Article III,
5 Section 16, Florida Constitution; relating to legislative
6 apportionment and create Article II, Section 10, Florida
7 Constitution; providing for a commission to establish
8 legislative and congressional districts; providing for the
9 appointment of members to the commission; requiring that
10 the Chief Justice of the Supreme Court fill certain
11 vacancies on the commission; requiring meetings and
12 records of the commission to be open to the public;
13 providing certain exceptions; requiring that the
14 commission file its report with the Secretary of State
15 within a specified period; requiring that the Supreme
16 Court determine the validity of the plans; providing for
17 the Supreme Court to establish the districts under
18 specified circumstances; providing for the assignment of
19 senatorial terms that are shortened as a result of
20 apportionment; deleting requirements that the Legislature
21 apportion the state into legislative districts.
22 CHAIRMAN DOUGLASS: All right. Commissioner
23 Evans-Jones, you're recognized as a proponent.
24 COMMISSIONER EVANS-JONES: Thank you, Mr. Chairman.
25 As you know, we voted yesterday to support -- many of us,
1 I think there were 19 -- an independent reapportionment
2 commission. And I would like to encourage all of you to
3 vote for this very fair proposal.
4 What this will do will bring equity into the
5 reapportionment process. It's not really something for
6 Democrats or for Republicans. Actually, it's for the
7 citizens of Florida. I think it will give them a great
8 deal of confidence to know that the legislators are not
9 going to be able to deal directly with this. It will be
10 their appointed people.
11 And I urge you to vote for this proposal. And any of
12 you who did not vote yesterday, who would like to vote
13 with us today, I urge you to come and join us. The people
14 of Florida will be greatly appreciative of your yes vote.
15 I urge you to vote for it.
16 CHAIRMAN DOUGLASS: All right. Opponent Commissioner
18 COMMISSIONER SCOTT: If I had the film, I could
19 fast-forward it here from the previous debate. I tried to
20 make the point, and I'm not sure I made it clear, that all
21 of these other things we've been discussing are things
22 that the Legislature deals with. But this is the most
23 basic. And the courts in this country have deferred to
24 the Legislature and they have made statements that this is
25 a difficult job and we know it's tough for them, but they
1 need to balance the community interest. They need to do
2 this, they are familiar with it.
3 So I would say to you it's not any better idea than
4 it was before. In my opinion, and I expect this will be
5 demonstrated as we go along, this will severely impact
6 minority seats and it certainly will impact who gets to
7 sit at the table and argue for and people that -- somebody
8 the people have to face and say, You know, we're really
9 going to cut up all the minorities in Tampa Bay or
10 whatever. And it's some commission that just happens to
11 be appointed from somewhere else, no one knows who they
12 are until they are appointed. They know who their
13 legislators are.
14 I urge you to vote against this. And those of you
15 that have voted for it, I would urge you to keep thinking
16 about it and get the input on the effect of this proposal.
17 CHAIRMAN DOUGLASS: Commissioner Zack, proponent.
18 COMMISSIONER ZACK: I believe the fix that we did
19 yesterday, the amendment that was placed, deals with these
20 issues. This is an important subject and it is a perfect
21 subject to take to the people in our public hearings and
22 to listen to the concerns and come to a final decision
23 after we've heard from them. And I strongly urge you to
24 support this and move it forward.
25 CHAIRMAN DOUGLASS: Any further debate? If not,
1 we'll unlock the machine and vote.
2 (Vote taken and recorded electronically.)
3 CHAIRMAN DOUGLASS: Everybody voted? Everybody
4 voted? Lock the machine and announce the vote.
5 READING CLERK: Nineteen yeas, 11 nays, Mr. Chairman.
6 CHAIRMAN DOUGLASS: By your vote you have adopted
7 this. We have one more proposal that I overlooked that we
8 have got to come back to. And that was the proposal by
9 Commissioner Freidin which we were discussing. And we've
10 had adequate time now for everybody to consider -- we
11 distributed it before, didn't we? Commissioner Morsani.
12 COMMISSIONER MORSANI: Can I ask a question?
13 CHAIRMAN DOUGLASS: Yes, sir.
14 COMMISSIONER MORSANI: On this, what we're getting
15 ready to discuss here --
16 CHAIRMAN DOUGLASS: Just a moment, let's have some
17 order. Commissioner Morsani.
18 COMMISSIONER MORSANI: I'm confused. Are we placing
19 this entire thing on the ballot?
20 CHAIRMAN DOUGLASS: No, I can answer that by saying
21 that the discussion was that we have to print the exact
22 text in a legal advertisement in every county that's run
23 by the Secretary of State twice before the election. So
24 it would be printed there. On the ballot, it will be
25 referred to probably solely as correcting the Constitution
1 to be gender neutral on language. And that probably would
2 be all that would be on the ballot.
3 I say "probably" because it's up to Style and
4 Drafting to recommend the ballot language. But that's in
5 keeping with all of the previous amendments that have been
6 on the Constitution like this.
7 I'd recognize Commissioner Freidin as the proponent,
8 if you'd like, Commissioner Freidin.
9 COMMISSIONER FREIDIN: Well, I think we have, as far
10 as I know, unless there are some others of you who have
11 had the opportunity to read this, I think we've resolved
12 Commissioner Mathis' concerns. She indicated to me that
13 she has had an opportunity to read it.
14 What's being handed out to you now is an amendment
15 that simply attaches all the proposed changes -- and makes
16 it into a proposal because what we had, as you saw before
17 you, was a very generic kind of a proposal without
18 specific language. So this provides the specific
19 language. There should be no question about what it is
20 that we are doing here and unless there -- anybody else
21 has any substantive concerns that haven't been brought to
22 my attention, I think we have resolved all the concerns
23 and we ought to vote on it.
24 CHAIRMAN DOUGLASS: Commissioner Mills, I think it
25 might be appropriate, as we have done in the others, has
1 Style and Drafting done this or reviewed this?
2 COMMISSIONER MILLS: Yes, Mr. Chairman. As a matter
3 of fact, Style and Drafting, because of both
4 representation and research, view this as
6 CHAIRMAN DOUGLASS: We're going to read it again. I
7 think we read it once, but we'll read it again, when we
8 started on it before. The amendment please. I guess we
9 read the proposal, read the proposal, and then read the
11 READING CLERK: Proposal 37, a proposal to revise the
12 Florida Constitution by adopting language that is not
13 gender specific.
14 By Commissioner Freidin, on Page 1, Lines 5 through
15 12, delete all of said lines and insert lengthy amendment.
16 CHAIRMAN DOUGLASS: All right. On the amendment,
17 Commissioner Mathis.
18 COMMISSIONER MATHIS: I have reviewed all 62 changes
19 in the amendment and I have no problem with any of them.
20 I do want to comment, though, having been black and female
21 for all of my life that while I have particular interest
22 in making the Constitution gender neutral, I do think that
23 even in those instances we should proceed with caution and
24 thought and contemplation.
25 CHAIRMAN DOUGLASS: Thank you, Commissioner Mathis.
1 COMMISSIONER MATHIS: I urge your support of the
3 CHAIRMAN DOUGLASS: All in favor of the amendment,
4 say aye; opposed?
5 (Verbal vote taken.)
6 CHAIRMAN DOUGLASS: The amendment carries. Now we're
7 on the proposal as amended. Commissioner Freidin, do you
8 want to close?
9 COMMISSIONER FREIDIN: I think enough has been said
10 about this. I urge you to vote for it.
11 CHAIRMAN DOUGLASS: Okay. Anybody else want to be
12 heard? If not, open the machine and we'll vote.
13 (Vote taken and recorded electronically.)
14 CHAIRMAN DOUGLASS: Come on, men, vote. Lock the
15 machine and announce the vote.
16 READING CLERK: Twenty-five yeas, 2 nays,
17 Mr. Chairman.
18 CHAIRMAN DOUGLASS: By your vote you've adopted the
19 proposal as amended. Okay. I believe this would be a
20 good time to break for lunch. Commissioner Barkdull? Do
21 you have something, Commissioner Langley?
22 COMMISSIONER LANGLEY: Just to explain that vote. I
23 voted against it purely on economic reasons. I think it's
24 an utter waste of taxpayers' money. And if somebody wants
25 to feel good, let them do it at their own expense rather
1 than the taxpayers'.
2 CHAIRMAN DOUGLASS: Your comment is considered one of
3 personal privilege and therefore it was allowed.
4 Commissioner Wetherington, did you want to add anything
5 before we go to Commissioner Barkdull and Commissioner
7 COMMISSIONER WETHERINGTON: I'd just like to say
8 something in reference to what Commissioner Langley said.
9 I understand his point of view --
10 CHAIRMAN DOUGLASS: Is it a point of personal
12 COMMISSIONER WETHERINGTON: Yes, it is.
13 CHAIRMAN DOUGLASS: You have that.
14 COMMISSIONER WETHERINGTON: Words are symbols and
15 that's why this is so important. This is being done
16 everywhere in the country. And we should -- the symbol
17 should be clear that everybody is on an equal basis. And
18 I think that's why it's important, even if it does cost a
19 little bit. And I know that Commissioner Langley feels
20 that way, too.
21 CHAIRMAN DOUGLASS: All right. Commissioner Riley.
22 Is this personal privilege?
23 COMMISSIONER RILEY: Personal privilege.
24 CHAIRMAN DOUGLASS: We have got to watch this
25 personal privilege.
1 COMMISSIONER RILEY: Very, very briefly in reference
2 to Commissioner Langley's remarks. Since it's going to be
3 done, since whatever the cost is is going to be the cost,
4 I would urge him to change his vote.
5 CHAIRMAN DOUGLASS: Oh, I don't think he needs to do
6 that. That might not be a personal privilege. I'm going
7 to rule that out of order. I don't think you ought to ask
8 him anything about his vote.
9 Commissioner Mills.
10 COMMISSIONER MILLS: Mr. Chairman, Style and Drafting
11 will meet on adjournment in 317.
12 CHAIRMAN DOUGLASS: Commissioner Barkdull.
13 COMMISSIONER BARKDULL: I will move you, sir, that we
14 recess until the hour of 1:15.
15 CHAIRMAN DOUGLASS: All right. Without objection,
16 we'll recess until 1:15. See you back then.
17 (Lunch recess taken from 11:51 a.m. to 1:15 p.m.)
18 SECRETARY BLANTON: All commissioners, indicate your
19 presence. All commissioners, indicate your presence.
20 CHAIRMAN DOUGLASS: All right. Let's come to order.
21 SECRETARY BLANTON: Quorum present, Mr. Chairman.
22 CHAIRMAN DOUGLASS: All right. The next item is
23 Proposal No. 2. Proposal No. 2 is the next item.
24 Commissioner Barkdull. All right, pay attention. All
25 right. Come to order, please. (Gavel.) Commissioner
2 COMMISSIONER BARKDULL: Let's get a little order here
3 because there's going to be a motion made in reference to
4 No. 2, I know.
5 CHAIRMAN DOUGLASS: Now, Commissioner Barkdull.
6 COMMISSIONER BARKDULL: Thank you, Mr. Chairman.
7 Before we go into the calendar, I know there will be a
8 motion made in reference to Proposal 2, he's already
9 spoken to me about it.
10 In the yellow packet that you had this morning, you
11 will find Proposal 166, it referred to a state Board of
12 Education, this was inadvertently left off of your
13 calendar this morning. It's not shown there, but it's in
14 your packet on the executive portion. I would like to
15 amend the calendar by placing it on Page 7 at the
16 conclusion of the proposals on education for our
17 consideration, which would put it after 181 by
18 Commissioner Brochin and just before we go into
19 environment. That's on Page 7 of the calendar, left-hand
21 CHAIRMAN DOUGLASS: All right. Is there any
22 objection? If not, without objection, it's placed on the
23 calendar, below item 181. It'll be the next item. And
24 that's on Page --
25 COMMISSIONER BARKDULL: 7.
1 CHAIRMAN DOUGLASS: -- 7 of your --
2 COMMISSIONER BARKDULL: Calendar.
3 CHAIRMAN DOUGLASS: -- calendar. All right. We are
4 ready to proceed and Proposal No. 2 is the first proposal
5 for consideration this afternoon. Read it, please.
6 READING CLERK: Proposal 2, by Commissioner Sundberg,
7 a proposal to revise Article I, Section 2, of the Florida
8 Constitution; authorizing governmental agencies to take
9 actions to remedy the effects of past discrimination, in
10 the areas of public employment, public housing, public
11 accommodations, public education, and the public
12 procurement of goods and services.
13 CHAIRMAN DOUGLASS: Commissioner Sundberg, you are
15 COMMISSIONER SUNDBERG: I would like to move to
16 temporarily pass that item until after Proposals 5, 11,
17 and 14 are considered, assuming all of them are going to
18 be considered. It simply -- it'll make it a more orderly
19 process. And I've already talked to the Rules Chairman
20 about this, just reordering it.
21 CHAIRMAN DOUGLASS: All right. There's been a motion
22 that it be deferred until Proposal Nos. 5, 11, and 14 have
23 been considered, at which time it will return to the
24 calendar for consideration.
25 COMMISSIONER SUNDBERG: Provided all of them are
1 considered today. Provided one or the other don't get
2 considered, I'll consider --
3 CHAIRMAN DOUGLASS: We'll make one motion at a time.
4 And the motion is we'll place it on the calendar following
5 those items. And without objection, it'll be placed
6 there. And we'll move to the next item.
7 Well, Commissioner Mills is waving. Commissioner
8 Mills, you are recognized.
9 COMMISSIONER MILLS: I want to proceed with the same
10 process that we had before and ask that you recognize
11 Commissioner Lowndes to describe this group and Style and
12 Drafting's recommendations.
13 CHAIRMAN DOUGLASS: Commissioner Lowndes, you are
14 recognized, sir.
15 COMMISSIONER LOWNDES: I was appointed by
16 Commissioner Mills to do that. I wasn't sure whether I
17 was being punished or whether he was against these
18 proposals, but there are six Declaration of Rights'
19 proposals. There is the one that Commissioner Sundberg
20 asked to be postponed for a few minutes, which authorizes
21 the government entities to remedy the effects of past
22 discrimination in certain areas. And the areas are areas
23 of publicly-owned housing, public employment, public
24 accommodations and public education, and the procurement
25 of public goods.
1 Proposal 5, which is the second, is Commissioner
2 Planas' proposal to add national origin to the reasons for
3 which a person cannot be deprived of rights, along with
4 race, religion and physical handicap.
5 Proposal 11 is Commissioner Freidin's proposal to add
6 to the first sentence of Article I, Section 2, a
7 definition of natural persons. It would read, all natural
8 persons, female and male alike. So the sentence then
9 would read, all natural persons, female and male alike,
10 are equal before the law, et cetera.
11 Proposal 14 is also by Commissioner Freidin. And she
12 has proposed that the physical handicap language in the
13 second sentence of Article II, Section 2, be changed to
14 physical disability. Proposal 58 by Commissioner Zack is
15 in Article I, Section 21, which deals with access to
16 courts. And it says, in effect, that in personal injury
17 and wrongful death actions, that the right of any person
18 to recovery may not be denied or abridged because of age.
19 I think we have all heard a lot about that and know why
20 that's there.
21 And finally, there's the religious freedom proposal,
22 187, by Commissioner Connor, which restricts government
23 from burdening religion or religious exercises even by
24 general law unless the government demonstrates a
25 compelling state interest that it's the least restrictive
1 means of doing it. And those are the six Declaration of
2 Rights' proposals that we have.
3 So I guess that the -- I would -- Style and Drafting
4 do not have any amendments to these proposals,
5 notwithstanding the fact that in the book that you have it
6 indicates that perhaps there is a Style and Drafting
7 amendment to Proposal 5, the one about national origin.
8 There was a discussion about whether or not to add
9 ethnicity to national origin, and the conclusion of Style
10 and Drafting was although it's very hard to distinguish
11 the difference between the two, that it really was a
12 substantive change and Style and Drafting was not involved
13 in making substantive changes. And if the proposer or
14 anyone else wanted to make that amendment, it was all
15 right, but Style and Drafting shouldn't.
16 So there are no Style and Drafting amendments to
17 these. So I suggest that we go to the Commissioner
18 Planas' one for national origin.
19 CHAIRMAN DOUGLASS: We will go to Proposal No. 5, the
20 first proposal for consideration this afternoon. Would
21 you read it, please?
22 READING CLERK: A proposal to revise, Article I,
23 Section 2, of the Florida Constitution; prohibiting
24 discrimination based on national origin.
25 CHAIRMAN DOUGLASS: Commissioner Planas is absent
1 today. Does anybody care to produce, to discuss this
2 proposal? Commissioner Zack.
3 COMMISSIONER ZACK: Since it's been discussed before,
4 I don't know how much more we need to say about it. It
5 was adopted because there was a need in this state to
6 specifically indicate that national origin was protected,
7 it was protected under Section 2.
8 The view of Commissioner Planas and anybody who has
9 experienced the experience of an immigrant in this
10 country -- and I can say that I had the privilege of being
11 an American citizen while still being an immigrant, coming
12 here when I was 14 years of age, but being an American
13 citizen by my father's citizenship. But when I came to
14 Miami and when I experienced what was certainly
15 experienced by the immigrant community there at that time,
16 there was not in many instances just direct
17 discrimination, but many and much indirect discrimination.
18 And this is a statement, and we talk about statements
19 and making statements and words are statements that are
20 very important to people, particularly people who have
21 been hurt and have been hurt by words along the way. This
22 is a statement that we need to make at this time for the
23 reasons previously stated.
24 And I know that Commissioner Planas wishes he was
25 here today, but he could not be here. And I gladly rise,
1 because it's of equal concern to me, as I'm sure it is to
2 the people in this commission.
3 CHAIRMAN DOUGLASS: All right, anybody else?
4 Commissioner Zack, I want to -- a lot of people have asked
5 me the question, which I will just refer to you: Do we
6 need this in the Constitution? And what does the term
7 "national origin" mean, in your opinion?
8 COMMISSIONER ZACK: Well, in my opinion, national
9 origin is exactly what it says. In this instance, as far
10 as Commissioner Planas' experience, my own experience, it
11 would be Cuban. It could be Haitian, it could be any
12 other nationality which we are aware of. So that's what
13 national origin means. Irish, I mean, it could be Irish,
14 absolutely. Any of us looking around here. Again, Native
15 American Indian, I think we have some of those here.
16 It would cover all of the national origins that come
17 to mind. I think that is the simple answer. And it
18 really is not a complicated issue.
19 CHAIRMAN DOUGLASS: So it applies to everybody.
20 COMMISSIONER ZACK: It really applies to everybody.
21 Everybody who is an American.
22 CHAIRMAN DOUGLASS: We are not talking about people
23 -- this is what I told them, we are not talking about
24 people that just got here.
25 COMMISSIONER ZACK: We are not talking about aliens
1 from other worlds. It is really strictly anybody who has
2 come here from another country.
3 CHAIRMAN DOUGLASS: Okay. Then the other question
4 was: Do we need it in the Constitution? Is it not
5 already there? That's the question that was posed to me.
6 COMMISSIONER ZACK: Well, national origin is really
7 different than race or religion or physical handicap.
8 Irish is not a race, per se. It has several different
9 religions who duke it out regularly as to which is more
10 Irish. It is Irish as an origin, it is not consumed in
11 any of the other statements that we now make regarding
12 race or religion. So I do believe it's necessary.
13 CHAIRMAN DOUGLASS: That answered the questions I've
14 been asked at least. Anybody else have anything to offer
15 or a question? Commissioner Henderson.
16 COMMISSIONER HENDERSON: A question to Commissioner
17 Zack. In my neck of the woods, in the agricultural
18 community --
19 CHAIRMAN DOUGLASS: Commissioner Henderson, we will
20 try to get your mike on.
21 COMMISSIONER HENDERSON: It says that the light is
23 In my neck of the woods pretty regularly the
24 immigration services come around and check green cards of
25 the folks in the fields and find many of them do not have,
1 are not properly registered and are taken back to another
2 country. Does this change -- does this affect the federal
3 immigration law in any way?
4 COMMISSIONER ZACK: In no way. They are taken if
5 they are not properly in this country, legally in this
6 country, regardless of national origin. This treats all
7 people the same. If you are legally here, you're supposed
8 to be here, you are given the same rights.
9 CHAIRMAN DOUGLASS: Okay. Anything further? If not,
10 we'll proceed to vote. Open the machine.
11 (Vote taken and recorded electronically.)
12 CHAIRMAN DOUGLASS: Has everybody voted? Lock the
13 machine and announce the vote.
14 READING CLERK: Twenty-eight yeas, zero nays,
15 Mr. Chairman.
16 CHAIRMAN DOUGLASS: The next item is Proposal 11 by
17 Commissioner Freidin. Read it, please.
18 READING CLERK: Proposal No. 11, a proposal to revise
19 Article I, Section 2, of the Florida Constitution;
20 providing that persons may not be deprived of their rights
21 because of gender.
22 CHAIRMAN DOUGLASS: There is an amendment. No, this
23 is a different -- to a different proposal. There's not an
24 amendment on the table. Commissioner Freidin, you are
1 COMMISSIONER FREIDIN: Commissioners, this gives you
2 the opportunity to tell the people of this state that we
3 feel that it is time to have some explicit recognition in
4 our Constitution of the equal right of women in this
6 We all know that women have experienced a --
7 historically experienced an inferior position in the eyes
8 of the law of our state and in the eyes of the law of our
9 country. And as well we have experienced an inferior
10 position politically. Now, in our state, the rights of
11 men derive from the Constitution, but the rights of women
12 are not explicitly recognized there. And the rights of
13 women, the equality of women that has come to us in the
14 last decade has come as a matter of statutory law.
15 It is time to formalize this in our Constitution.
16 Seventeen states have Equal Rights Amendments in their
17 Constitutions at the present time. It is time for us to
18 have both sexes on one plane. It is a constitutional
19 concept whose time has come. It is time for us to
20 recognize the need of this state to protect and cultivate
21 the equality of women and to require equal obligations and
22 responsibilities of all citizens. This is a historic
23 opportunity for us to begin the process to establish
24 constitutional rights to equality for women in our state.
25 And if there's any question, I would urge you to
1 think back about the press coverage that you read after we
2 had our preliminary vote on this. This is, to my
3 knowledge, the only issue that received a front page, top
4 of the page headline in the Miami Herald and other papers
5 around this state. This is a very important issue. The
6 eyes of all of our citizens are upon us on this issue.
7 I urge you to continue your support of this measure
8 and to vote for it.
9 CHAIRMAN DOUGLASS: Commissioner Mathis.
10 COMMISSIONER MATHIS: I'm rising in opposition to
11 this proposal, and I voted for this proposal initially,
12 because I do think that women deserve the same status as
13 men, that the Constitution should apply to all persons.
14 But I am concerned about unintended consequences, and that
15 concern has been heightened because of the publicity
16 that's followed our vote in January.
17 And I'm reading from a Tampa Tribune article where
18 Charlene Carres, a civil rights attorney, I think she's
19 with the ACLU, says, If this ends up -- speaking to this
20 proposal being put into the Florida Constitution -- it
21 should mean that courts will have to treat the laws that
22 treat sexes differently with the same high level of
23 suspicion as with race.
24 Then I go and I turn to the decision in the Hawaii
25 court which said that the state could no -- because of
1 Hawaii's Constitution putting sex, the word "sex" into the
2 protected class, that it brings the state regulation of
3 access to the status of married persons on the basis of an
4 applicant's sex, it gives rise to a question as to whether
5 the applicant couple has been denied the equal protections
6 of the law.
7 Because of that reasoning, I can no longer support
8 this, because clearly to me, this proposal would authorize
9 same sex marriages. And the issue of unintended
10 consequences is, I think, too appalling. Having had the
11 time to research it since January, I would vote that this
12 commission, unless we are voting to authorize same sex
13 marriages, vote down this proposal.
14 CHAIRMAN DOUGLASS: Commissioner Lowndes.
15 COMMISSIONER LOWNDES: Mr. Chairman, the Style and
16 Drafting committee had research done on a number of these
17 Declaration of Rights' proposals by Professor McGinley
18 from Florida State College of Law. And the staff has that
19 research, but I would like to read from that research just
20 a couple of lines in answer to my good friend,
21 Commissioner Mathis.
22 "From my research it appears extremely unlikely that
23 to adding sex to the list of enumerated protected classes
24 would result in same sex marriage in Florida. Although
25 over 20 years almost half of the states' Constitutions
1 have equal rights provisions, only Hawaii has interpreted
2 its equal rights provisions permit same sex marriage.
3 "The Hawaii case is an aberration. The following
4 cases -- and she lists a number of states' rights cases --
5 have interpreted their state's Equal Rights Amendment or
6 statutory provisions forbidding discrimination to be
7 consistent with the homosexual definition of marriage."
8 (Off-the-record comment.)
9 COMMISSIONER LOWNDES: Heterosexual, excuse me.
10 In other words, the research that we have had done
11 for the Style and Drafting Committee indicates that it's
12 highly unlikely that this amendment -- if it in fact is
13 interpreted as an Equal Rights Amendment, which the
14 research also indicates is somewhat, somewhat
15 problematical, that it would not permit same sex
16 marriages. Thank you.
17 CHAIRMAN DOUGLASS: All right. That research was
18 done by anybody specifically or by a team group or what?
19 COMMISSIONER LOWNDES: By Professor McGinley who
20 happens to be here with us coaching me today.
21 CHAIRMAN DOUGLASS: That's good. I think the
22 question raised by, am I right, by Commissioner Mathis is
23 this person with the ACLU stated that her opinion, without
24 the benefit of Professor McGinley's research, was to the
25 contrary? Is that what you are saying?
1 COMMISSIONER MATHIS: It is. And it also is contrary
2 to the representation that Commissioner Freidin made in
3 her presentation that this is an Equal Rights Amendment
5 CHAIRMAN DOUGLASS: So the record is very clear at
6 least at this point that the Style and Drafting Committee,
7 based on research, doesn't feel it authorizes same sex
8 marriages. Is that, for the record, the position of the
9 committee? Commissioner Mills.
10 COMMISSIONER MILLS: I think that's accurate.
11 Furthermore, even the provision read dealt with the
12 insertion of the word "sex" in the protected classes area,
13 as I understand it. In other words, your research said
14 that even if you, even if you inserted "sex" into the
15 protected classes area, it would be unlikely.
16 So, at least, just in terms of reacting objectively
17 to the research, it says that in terms of same sex
18 marriages, it would be highly unlikely. And as I recall,
19 when this was originally passed, didn't Commissioner
20 Connor and Commissioner Freidin have some statement for
21 the record that it didn't intend to do that?
22 CHAIRMAN DOUGLASS: I think that's true.
23 Commissioner Riley.
24 COMMISSIONER RILEY: I would like to speak in favor,
25 strongly in favor, if I may.
1 CHAIRMAN DOUGLASS: Okay. We'll now get an opponent.
2 Commissioner Evans, you are an opponent?
3 COMMISSIONER EVANS: Opponent.
4 CHAIRMAN DOUGLASS: Proponent?
5 COMMISSIONER EVANS: Opponent.
6 CHAIRMAN DOUGLASS: All right. You are on.
7 COMMISSIONER EVANS: In response to Commissioner
8 Mills, it's my understanding that when Commissioner Connor
9 took the statement of intent around for the proponents to
10 sign that Commissioner Freidin did not choose to sign
11 that. So that speaks also as to the intent of the
12 proponent that this should legalize same sex marriage.
13 CHAIRMAN DOUGLASS: Commissioner Freidin, do you want
14 to respond to that?
15 COMMISSIONER FREIDIN: I would like to respond to
16 that. I did not sign that statement for a myriad of
17 reasons, having nothing to do with the intent of the
18 proposal, it had to do with the wording of what he was
19 asking me to sign. I have also done my own independent
20 research and I can tell you that there are at least a half
21 a dozen states and the District of Columbia that have
22 considered the question of whether an Equal Rights
23 Amendment creates the right to a same sex marriage. And
24 the answer is no.
25 And the only state in the country that has come up
1 with that idea -- and by the way, they came up with it on
2 a constitutional provision that's not worded like what our
3 wording is or what we are proposing here -- is Hawaii.
4 Now, and I also want to point out that in the
5 District of Columbia, where this case, where a case trying
6 to invalidate -- the case tried to invalidate the
7 requirement that in a marriage there be members of the
8 opposite sex. And the appellate court there did not
9 refuse to invalidate that requirement, said you cannot
10 have a same sex marriage.
11 And in the District of Columbia, there's even a gay
12 rights amendment, even a gay rights amendment in the
13 District of Columbia. And even with a gay rights
14 amendment they said that doesn't create the right to a
15 same sex marriage. This is a red herring.
16 I also want to remind you-all that when this started
17 we had sex or gender in the second sentence of Article I,
18 Section 2, but we changed that language to satisfy
19 Commissioner Connor. And I'm sorry that he's not here
20 today but that was --
21 CHAIRMAN DOUGLASS: He will be back.
22 COMMISSIONER FREIDIN: -- but that was the deal. And
23 he was, he indicated that he was satisfied that this, that
24 that at least, that that reduced or eliminated the
25 likelihood, I don't remember his exact words and I don't
1 want to over-quote him, but my understanding was that he
2 felt that that eliminated the likelihood. He may have
3 said something a little less than that.
4 But there can be no question, in my legal mind, that
5 anything we put into the Constitution can do -- you have
6 no idea, in the end, where it's going -- where -- what
7 thing could possibly come out of it. But that doesn't
8 mean that you should fail to do something that is clearly
9 right when there's such a very, very, very remote chance
10 that some court would rule with Hawaii, the only court
11 that has ever ruled that way under similar circumstances.
12 CHAIRMAN DOUGLASS: Okay. I'm advised by the
13 timekeeper that the proponents' time has run out, unless
14 it's extended. He's not a proponent, he's an opponent,
15 right? And their time has not run out. Commissioner
17 COMMISSIONER LANGLEY: I was going to do it in the
18 form of a question, but I don't think there's any question
19 in anyone's mind here today that both the federal and
20 state law have recognized equality of the sexes. So this
21 is not going to have any positive effect on anything that
22 the proponent allegedly is seeking.
23 Now could it have a negative effect? Hawaii said
24 yes, that they, you know, authorized homosexual marriages.
25 Would the court do that in Florida? Let me tell you, when
1 I stood here in 1981 and voted for the privacy act, which
2 was voted on by this Legislature because government was
3 reaching too far in search warrants and wiretapping and
4 other government intrusion, and we sat here and almost
5 unanimously voted out a privacy act.
6 If I had had any inkling that some court would later
7 use that to say that a 13-year-old girl could have an
8 abortion without her parents' knowledge or consent, no one
9 would have ever dreamed that the privacy act could have
10 been used for that. So why risk this possibility?
11 We don't need it, it's already equality. We are
12 making on this record it is already an equal situation.
13 Why open up that door to the possible very negative things
14 that could come out of it?
15 CHAIRMAN DOUGLASS: All right. I don't want to cut
16 off debate. Commissioner Barkdull.
17 COMMISSIONER BARKDULL: I would like to ask
18 Commissioner Freidin a question, please.
19 CHAIRMAN DOUGLASS: Commissioner Freidin yields.
20 COMMISSIONER BARKDULL: Commissioner Freidin, in your
21 research in this matter, did you turn up a case out of New
22 Jersey recently that kind of tangentially touched on this
24 COMMISSIONER FREIDIN: No, I did not.
25 CHAIRMAN DOUGLASS: Professor McGinley did.
1 Commissioner Mills.
2 COMMISSIONER MILLS: Mr. Chairman, if you want the
3 motion, I'll move to extend for five minutes if there are
4 other people.
5 CHAIRMAN DOUGLASS: All right. Without objection,
6 we'll extend it for five minutes. Commissioner
8 COMMISSIONER WETHERINGTON: Thomas Wolfe, in one of
9 his novels, said that every person should have their
10 chance, their golden opportunity to become the best that
11 their talents and vision could combine to make them. That
12 ought to apply to everybody in our country.
13 I hear, not speaking about anybody here, I hear a lot
14 of mean-spirited things about people, about people based
15 on sexual orientation and things like that. When are we
16 going to come to the time when we truly believe in our
17 hearts that everybody is sacred, that everybody is
18 entitled to our protection, everybody is entitled to the
19 opportunity to live a happy life in this country? When
20 are we going to start putting a stop to some of this
21 mean-spiritedness that we are hearing where our country is
22 being divided by all of these things?
23 I'm in favor of equality for all people. And I think
24 that this commission should be in favor of equality for
25 all people, that we should try to give everybody in our
1 country the best chance, in a difficult world, to be as
2 happy as they can.
3 CHAIRMAN DOUGLASS: Commissioner Riley.
4 COMMISSIONER RILEY: Well, I am a person who signed
5 that letter, and perhaps it's my nonlegal background, and
6 I didn't see all of the piccadillos that might be all the
7 little words, but I did sign it. And I think as I
8 understand unintended consequences, and as I understand
9 heightened scrutiny in my nonlegal expertise that I have
10 gained over these months, it's in there already and it
11 heightens that. We're not adding anything that's never
12 been in there. We are adding heightened scrutiny to this.
13 I think we should not only vote for this, but we
14 should be proud, very proud to vote for this, be able to
15 could go home and say to our sons and our daughters that
16 you will have the equal opportunity that your brother has,
17 because our grandmothers did not, our mothers probably did
18 not, it is a good likelihood that we did not, and our
19 daughters deserve no less.
20 CHAIRMAN DOUGLASS: All right. Any further
21 opponents? What was the New Jersey case? Did you find
22 out, Commissioner Lowndes? I think we might all --
23 Commissioner Barkdull brought that up.
24 COMMISSIONER LOWNDES: Yes, sir, I did. This again
25 is from Professor McGinley's research. It says, "Related
1 cases have held that marriage is a special institution
2 between a man and a woman whose benefits do not extend to
3 same sex couples." And it cites Rutgers Council of AAUP
4 versus Rutgers, a 1997 New Jersey case. It says, "Same
5 sex partners do not have the right to health benefits."
6 CHAIRMAN DOUGLASS: That is under a Constitution that
7 had a provision like -- not like this, I guess, but she's
8 nodding her head yes.
9 COMMISSIONER LOWNDES: So I'm advised, that's right.
10 CHAIRMAN DOUGLASS: Okay. Any further debate or
11 questions, whatever? And if you have got them, let's
12 raise them now and get them on the record. If not, we'll
13 proceed to vote. Open the machine.
14 (Vote taken and recorded electronically.)
15 CHAIRMAN DOUGLASS: Lock the machine and announce the
17 READING CLERK: Twenty yeas, 11 nays, Mr. Chairman.
18 CHAIRMAN DOUGLASS: By your vote you have adopted
19 this proposal for further consideration.
20 We will now move to Proposal 14. Read it, please.
21 READING CLERK: Committee Substitute for Proposal 14,
22 a proposal to revise Article I, Section 2, of the Florida
23 Constitution; changing the term "physical handicap" to
24 "physical disability."
25 CHAIRMAN DOUGLASS: All right. That's by
1 Commissioner Zack, isn't it? No, excuse me, Commissioner
2 Freidin, this is yours also. Does the committee have
3 anything on this, Commissioner Lowndes?
4 COMMISSIONER LOWNDES: No, sir. I think that the
5 research that we had indicated that there really was very
6 little distinction between the term "handicap" and
7 "disability," but disability seemed to have become the
8 preferred term in legislation and in regulation,
9 particularly regulation by the federal government.
10 CHAIRMAN DOUGLASS: All right. Commissioner Freidin
11 to open on this proposal and tell us what it does and why
12 we need it.
13 COMMISSIONER FREIDIN: This is simply a change that
14 was requested. It was requested by some members of the
15 disabled community that we make this change. The members
16 of the disabled community feel that the word "handicapped"
17 in our Constitution is insulting to them, and that it is
18 demeaning to them. And they have asked us to make this
19 change to bring us into the current mode of thinking that
20 to be handicapped is to be limited in ways that are
21 greater than the limitation that would be -- exist for a
22 disabled person.
23 It is a very modest request, it is a provision -- it
24 is in an article that's going to be on the ballot, I'm
25 certain, anyway. So it's really a very minimal thing to
1 do. I think that there's a body of law under the federal
2 law that does define the word "disability" a little bit
3 better than the word "handicapped" is defined. But those
4 are essentially the reasons to do it.
5 CHAIRMAN DOUGLASS: Commissioner Barkdull.
6 COMMISSIONER BARKDULL: Yield for a question?
7 CHAIRMAN DOUGLASS: She yields.
8 COMMISSIONER BARKDULL: Commissioner Friedin, will
9 this expand any rights of individuals?
10 COMMISSIONER FREIDIN: Not that I'm aware of.
11 COMMISSIONER BARKDULL: But you say it brings us
12 under the federal law.
13 COMMISSIONER FREIDIN: I don't think that it expands
14 any rights, I think that it simply clarifies the
15 definition of somebody who falls under the category that's
16 covered. I don't think it creates any rights for a
17 disabled person that a handicapped person wouldn't have
18 had, it just makes it clear who is covered.
19 CHAIRMAN DOUGLASS: Commissioner Lowndes, the
20 question was, and maybe you can answer this a little more
21 specifically, I think. Commissioner Barkdull, restate
22 your question.
23 COMMISSIONER BARKDULL: Commissioner Lowndes.
24 CHAIRMAN DOUGLASS: You said something about the
25 federal law.
1 COMMISSIONER BARKDULL: That's right. I asked if
2 this expanded any rights when we are adopting the federal
3 law. And I understood from Commissioner Freidin that
4 that's what we are doing.
5 CHAIRMAN DOUGLASS: Commissioner Lowndes.
6 COMMISSIONER LOWNDES: I'm advised that these terms
7 have been used interchangeably. I think that what we are
8 really doing is updating the term as opposed to creating
9 any new rights. I think this is what our research has
11 CHAIRMAN DOUGLASS: Commissioner Kogan, do you want
12 to get in on this?
13 COMMISSIONER KOGAN: We are under the Americans with
14 Disabilities Act, no matter which way you slice it. And
15 whether you call it handicapped or disabled, it doesn't
16 make any difference, it still falls under the federal law.
17 The whole purpose of this, and I can understand these
18 folks coming up and saying what they are, the use of the
19 word "handicapped" indicates someone who is a lesser type
20 person than if you use the word "disability." If you sit
21 back and you think about that for a while, that's exactly
22 what handicapped means, and that puts you in some sort of
23 a second class role as a citizen.
24 And disability means that, yes, you have a
25 disability, but you are able to fully function as a
1 regular citizen should. Now for those of you who are not
2 disabled, it may not mean anything at all. But believe
3 me, if you have to wheel yourself around in a wheelchair,
4 go up a ramp in a wheelchair, or have to carry an oxygen
5 tank with you, it means a heck of a lot.
6 All this is is really a statement principle which
7 gives comfort to a large segment of our population to let
8 them know that we don't consider them handicapped in the
9 sense that they are any lesser a citizen than someone
11 CHAIRMAN DOUGLASS: All right. Any further
12 discussion? Do you need to close, Commissioner Freidin?
13 COMMISSIONER FREIDIN: I think it's been said. I
14 think this is a matter of goodwill and I urge you to
15 support it.
16 CHAIRMAN DOUGLASS: All right. Unlock the machine
17 and let's vote.
18 (Vote taken and recorded electronically.)
19 CHAIRMAN DOUGLASS: Lock the machine and announce the
21 READING CLERK: Twenty-nine yeas, 1 nay,
22 Mr. Chairman.
23 CHAIRMAN DOUGLASS: I just want you to know that
24 Commissioner Alfonso reminded me that he had a 21 handicap
25 and he would like to change the term. I lied for him in
1 case any of you are going to play golf with him. He is a
2 little better than that, so don't let him fool you when
3 you get on the first tee.
4 Let's move to No. 2. We go back to No. 2. Are you
5 ready now, Commissioner Sundberg? Read Proposal No. 2.
6 READING CLERK: Proposal 2, a proposal to revise
7 Article I, Section 2, of the Florida Constitution;
8 authorizing governmental agencies to take actions to
9 remedy the effects of past discrimination in the areas of
10 public employment, public housing, public accommodations,
11 public education, and the public procurement of goods and
13 CHAIRMAN DOUGLASS: All right. Commissioner
15 COMMISSIONER SUNDBERG: Mr. Chairman, there should be
16 an amendment on the desk.
17 CHAIRMAN DOUGLASS: All right. There is an amendment
18 on the desk. Would you read the amendment, please?
19 READING CLERK: By Commissioner Sundberg, on Page 1,
20 Line 23, insert after person, "female or male."
21 COMMISSIONER SUNDBERG: Mr. Chairman, the purpose of
22 this amendment is really to make that sentence conform to
23 what has been done by our earlier votes where it read, all
24 natural persons, you know, female and male alike. And I
25 would not -- because I made representations with respect
1 to the reach of this equal opportunity proposal of mine
2 that it clearly was intended to, and my colloquy and
3 dialogue with Commissioner Connor made it clear that it
4 was to apply to actions taken by government to benefit
6 And I did not want any implication to arise that
7 because it was stated in the first sentence and was not
8 stated in that sentence that reads, No person shall be
9 deprived. So it simply says, no person, female or male
10 shall be deprived of any right because of race, religion
11 and it now says physical disability.
12 CHAIRMAN DOUGLASS: On the amendment. Any discussion
13 on the amendment? If not, all in favor of the amendment
14 say aye; opposed?
15 (Verbal vote taken.)
16 CHAIRMAN DOUGLASS: The amendment is adopted. We now
17 proceed with Proposal No. 2 as amended. It's in your blue
19 COMMISSIONER SUNDBERG: Yes, it's in the book. And
20 as you know, it's very recently that we have considered
21 this matter. It has been extensively debated by
22 Commissioner Anthony, by Commissioner Connor, by
23 Commissioner Langley, Commissioner Smith, Commissioner
24 Lowndes. In fact, almost everyone has had their oar in
25 this water.
1 I would simply remind you that this provision is very
2 limited and focused with respect to the provision of equal
3 opportunity to protected classes. It provides that, for
4 example, that certain governmental entities, state and
5 local, and universities may take actions. It doesn't
6 require anybody to take actions. It may take actions
7 which do not include financial reparations. It may take
8 actions, only those actions necessary to remedy the
9 present effects of past discrimination.
10 It may not, it may not advance programs under the
11 aegis of this proposal unless it is clearly and carefully
12 crafted to meet a remedy of present effects of past
13 discrimination. It is not -- for example, it does not in
14 general permit government to take actions which will lead
15 to greater diversity, for example. So in that respect it
16 is quite limited and focused in its reach.
17 And it may take these actions, only those which are
18 necessary, and only under the case law that Commissioner
19 Connor and I had quite a dialogue about. There's a lot of
20 federal case law that defines what you must establish on a
21 record to establish programs that are based on the present
22 effects of past discrimination. And all of that I have
23 conceded, and that dialogue is contained within this
25 Likewise, it's very limited and it is focused in the
1 areas or relationships to which it is addressed. These
2 programs may only be addressed to publicly-owned housing,
3 public employment, public accommodations, public
4 education, and the public procurement of goods and
5 services, and the expenditure of public funds. We have
6 discussed all of that in the past.
7 I urge you to re-endorse this proposal today. And on
8 this record, I would like to reassert to all here
9 assembled and readopt the representations I made to
10 Commissioner Connor with respect to the reach of this
11 amendment and that the intent is precisely as I have
12 heretofore represented to Commissioner Connor. And with
13 that representation as to intent, yes, sir.
14 CHAIRMAN DOUGLASS: There's an amendment on the
15 table. Read the amendment, please, by Commissioner
16 Mathis. She moves it.
17 READING CLERK: By Commissioner Mathis, on Page 1,
18 Line 23, delete after person, "female or male."
19 CHAIRMAN DOUGLASS: All right. Commissioner Mathis,
20 on the amendment.
21 COMMISSIONER SUNDBERG: I think it's out of order,
22 Mr. Chairman. We just voted to insert it.
23 CHAIRMAN DOUGLASS: No, she's voting now to take it
25 COMMISSIONER SUNDBERG: I suggest to you it's out of
2 CHAIRMAN DOUGLASS: Commissioner Thompson.
3 COMMISSIONER THOMPSON: I think all she has got to do
4 is make a simple motion to reconsider the vote by which
5 the amendment was adopted and we're back on it.
6 COMMISSIONER SUNDBERG: If she represents that she
7 voted for it.
8 CHAIRMAN DOUGLASS: When a voice vote is taken,
9 anybody can move to reconsider.
10 COMMISSIONER SUNDBERG: You're correct.
11 CHAIRMAN DOUGLASS: Let's treat it as an amendment
12 and go ahead. The issue is going to be addressed, let's
13 address it. Let her say what she has got to say unless
14 somebody objects. Go ahead and say what you have got to
15 say, Commissioner Mathis.
16 COMMISSIONER MATHIS: Well I think on this issue of
17 equal opportunity is very different than this issue of
18 placing female and male right after that sentence, No
19 person. I think, again, I say while we have had
20 representations from an FSU professor, who is highly
21 respected, that it is unlikely, nobody has said that it
22 won't approve same sex marriages.
23 Now I don't think that anybody is being mean-spirited
24 about anything to have the discussion about same sex
25 marriages, but if that is an issue, let's discuss that
1 issue openly and freely, but that is not what this
2 proposal is about. This proposal is about equal
3 opportunities and government entities being allowed to
4 remedy past discrimination. If this proposal is loaded
5 down with the issue of same sex marriages, I think it
6 defeats it. And I would recommend opposition to this.
7 CHAIRMAN DOUGLASS: All right. Now, Commissioner
8 Smith, on the amendment.
9 COMMISSIONER SMITH: To the amendment only, and for
10 those of you who have that concern about same sex
11 marriages, please understand that with regard to the
12 insertion of the words "female and male alike," it relates
13 to the provision dealing with public housing, public
14 accommodations. It does not deal with the basic rights'
15 issue that you were talking about before. It deals with
16 public housing, public education, et cetera.
17 No? It is in the sentence before it?
18 (Off-the-record comment.)
19 CHAIRMAN DOUGLASS: Commissioner Scott. Do you yield
20 to Commissioner Scott? Commissioner Smith yields to
21 Commissioner Scott.
22 COMMISSIONER SCOTT: I want to support her amendment
23 and for a couple of reasons, and I voted for Commissioner
24 Freidin's proposal.
25 First of all, it doesn't have in it the word "alike"
1 That was in the first proposal. Secondly, we had a
2 significant debate and no one is exactly sure, including
3 our learned professor back here, about the significance of
4 putting this in that sentence versus where it was
5 originally put in the top sentence where it says "all
6 natural persons."
7 I just think at this point it's not necessary -- I
8 mean, you can talk about consistency, fine. But I don't
9 think that -- this proposal is in a different direction,
10 different than the proposal concerning equal rights for
11 men and women. And I really think that we should adopt
12 her amendment and not add it in there twice and add it
13 into that sentence, because we are not sure what the
14 effect of that is.
15 And regardless of gay marriages, in general, we are
16 not sure of the significance of putting it in there. This
17 was debated at Style and Drafting and it was determined by
18 them to leave the proposal as it was since that is what
19 had been worked out among the members on the floor.
20 CHAIRMAN DOUGLASS: All right. Commissioner Scott,
21 can I ask you -- is it your position, too, that by doing
22 that, it doesn't just relate to homosexual marriages, it
23 could be held to relate to other type rights for
24 homosexual people?
25 COMMISSIONER SCOTT: My comments are not directed to
1 the issue of homosexual marriage or other rights.
2 CHAIRMAN DOUGLASS: You are just saying it shouldn't
3 be in there.
4 COMMISSIONER SCOTT: I just think that we shouldn't
5 on the floor add in there and not use all of the words
6 that were agreed to and put it in there in this sentence.
7 We don't know what that means. We would have to go back
8 and maybe get some more opinions because the decision was
9 to leave it in the first sentence the way it was in
10 Commissioner Freidin's proposal.
11 CHAIRMAN DOUGLASS: I think your position is clear.
12 Does anybody else want to speak on the amendment? The
13 amendment would, in effect, delete the additional language
14 that was put in. If not, we will all vote on the
15 amendment. Let's open the machine and vote on the
17 (Vote taken and recorded electronically.)
18 CHAIRMAN DOUGLASS: Lock the machine and announce the
20 READING CLERK: Twenty-one yeas, 8 nays,
21 Mr. Chairman.
22 CHAIRMAN DOUGLASS: Commissioner Mathis' amendment is
23 adopted, which has the effect of striking the words
24 "female or male" on Line 23. Now we'll revert to that
25 proposal without that amendment. There's now no
1 amendments on it. It's like it was when we started as it
2 came from Style and Drafting. Commissioner Barkdull.
3 COMMISSIONER BARKDULL: Would Commissioner Sundberg
4 take the floor and yield for a series of questions?
5 COMMISSIONER SUNDBERG: Yes, sir.
6 COMMISSIONER BARKDULL: Commissioner Sundberg, when
7 we had this dialogue earlier in this session, I believe
8 you responded to me that what this covers is being done
9 today; is that correct?
10 COMMISSIONER SUNDBERG: Yes, sir.
11 COMMISSIONER BARKDULL: In other words, it's not
12 necessary --
13 COMMISSIONER SUNDBERG: I'm sorry, let me rephrase.
14 It is capable of being done today.
15 COMMISSIONER BARKDULL: It's not necessary for it to
16 be in the Constitution to enable it to be done today.
17 COMMISSIONER SUNDBERG: To be done today, no, it is
18 not necessary for it to be in the Constitution. We have
19 had this colloquy and my answers are no different than
20 they were before.
21 COMMISSIONER BARKDULL: Thank you.
22 COMMISSIONER SUNDBERG: May I expand that?
23 CHAIRMAN DOUGLASS: You may, you have the floor.
24 COMMISSIONER SUNDBERG: Just as I responded before,
25 Commissioner Barkdull, what this is attempting to address
1 is the fact that there are forces afoot, whether we like
2 it or not, that are organized and have organized to mount
3 a campaign to insert a provision in the Constitution which
4 would prevent, which would prevent the state, its
5 universities and local government from, where it thinks it
6 appropriate, taking action -- I'm not through yet, taking
7 action of this sort.
8 And what has happened, and it was -- you know, we had
9 much debate about it. On issues like this that get highly
10 demagogued, how they are characterized makes a great deal
11 of difference. And I want the people of the state of
12 Florida, the citizens of this state, if they propose to
13 eliminate government's ability to correct the present
14 effects of past discrimination, that they are going to
15 have to do it straight up and say that we are, in fact, as
16 the citizens of this state, opposed to it and hence we are
17 going to have to mount a constitutional provision which
18 will repeal this express authority.
19 CHAIRMAN DOUGLASS: Commissioner Barkdull.
20 COMMISSIONER BARKDULL: He's answered the question.
21 If they pass a constitutional amendment, it would repeal
22 this, if he puts it in.
23 CHAIRMAN DOUGLASS: Okay. That's so short, I didn't
24 recognize your answer.
25 COMMISSIONER BARKDULL: Well, he didn't ask me a
2 CHAIRMAN DOUGLASS: Okay.
3 COMMISSIONER BARKDULL: All I wanted to point out was
4 it's not necessary today, that these activities can be
5 done. I don't know what evil forces or whatever forces
6 that Commissioner Sundberg is speaking of. But there is
7 only two ways, if it can be done today, that they could
8 stop it. That would be by the Legislature in some act or
9 by a constitutional amendment, I believe, possibly by an
10 initiative petition. But this is not going to protect it
11 if they do it by constitutional amendment.
12 CHAIRMAN DOUGLASS: All right. Commissioner Mathis
13 was up and then, Commissioner Langley, you are next.
14 COMMISSIONER MATHIS: I can put my whole heart and
15 soul into supporting this proposal under its current
16 language. All it does is open up opportunities, not just
17 for one group of people, but I think for women-owned
18 businesses, minority-owned businesses. It opens up
19 opportunity and it provides that local governments may put
20 these programs in place.
21 And so, I would urge 100 percent support of this
22 proposal, even from Commissioner Langley.
23 CHAIRMAN DOUGLASS: Who has asked to be recognized in
24 opposition. Commissioner Langley.
25 COMMISSIONER LANGLEY: The mean-spirited Commissioner
2 CHAIRMAN DOUGLASS: You are out of order. We are not
3 going to accept that, you are not mean spirited.
4 COMMISSIONER LANGLEY: No, I'm not. But somebody has
5 to stand up for those who are negatively affected by this
6 proposal. To call this equal opportunity is a total
7 misnomer. Commissioner Sunquist [sic] has said he doesn't
8 want equal opportunity, he wants to tip the field 45
9 degrees in favor of those people in this class. That's
10 not equal opportunity.
11 As I said before, I never owned a slave, you know.
12 We traced back my family, they were sharecroppers. They
13 were less than slaves in South Georgia. You know, we
14 didn't have the knowledge that we would even eat from day
15 to day. At least they fed the slaves. In ours you had to
16 make what you ate or you didn't eat.
17 But the unequal part of what we are doing under the
18 guise of equal opportunity is telling the unprotected
19 people who would normally be eligible for law school,
20 eligible for medical school, eligible to bid on the City
21 of Orlando contracts, sorry, folks, it is not an equal
22 opportunity for you because we have to set aside
23 20 percent, 30 percent, 15 percent of this contract for
24 these protected classes. You can't bid on those because
25 you are not within that class. That's not equal
1 opportunity, that's not a level playing field and that's
2 not right.
3 Why should a person who qualifies for law school,
4 where there's a limited enrollment, be turned down when
5 his scores, his aptitude and everything else is above that
6 of those who are admitted because they are a protected
7 class? Do we have the right to do that to those people?
8 I don't think we do. I don't think it's fair.
9 I don't care how popular or unpopular it is to take
10 that position. But right is right. And this is no more
11 right than if you excluded these minorities the same way.
12 Why are we doing it? Is it a matter of conscience? I
13 didn't do it; I'm innocent. I didn't own slaves. I
14 didn't discriminate. And my kid has just as much a right
15 to get in that law school as H.T.'s kid has to get in that
16 law school. They should compete equally. There should
17 not be an advantage either way. Why create that
18 advantage? It's not fair and it's not equal.
19 CHAIRMAN DOUGLASS: Commissioner H.T., do you want to
20 reply since you have now been identified by a different
22 (Off-the-record comment by Commissioner Smith.)
23 CHAIRMAN DOUGLASS: You are going to close? Just
24 before you close, I think Commissioner Morsani has a
1 COMMISSIONER MORSANI: If I am the last speaker
2 before he closes, I would like to speak.
3 CHAIRMAN DOUGLASS: If you don't do too badly, you
4 probably will be the last speaker before he closes. I
5 can't guarantee that, but you are the last opponent, if
6 you want to be that.
7 COMMISSIONER MORSANI: I would like to be the last
9 CHAIRMAN DOUGLASS: Then you are recognized.
10 COMMISSIONER MORSANI: As I've said many times in
11 this chamber, our hearts are in the right place, however,
12 sometimes, we have to make hard decisions. I'm not as
13 eloquent as Commissioners Sundberg and Smith and others in
14 this chamber, but I do speak from my heart.
15 This is a flawed proposal, which, in my opinion, will
16 set back race relations in this fine state. The most
17 basic objection to affirmative action is that it is
18 destroying, destroying what America means. Changing us
19 from a society whose rewards may be achieved by individual
20 merit to one whose rewards are bonded out according to
21 group identity. Affirmative action has become a euphemism
22 for quotas.
23 Commissioner Mathis, Commissioner Smith, I too have
24 felt the pangs of discrimination. And I know others in
25 here who I've talked to have felt those same pangs. But I
1 tell you, two wrongs do not make a right. We talk about
2 diversity, I don't see any Orientals in this room.
3 You know, I was fired from a job because I was
4 Italian. In 1955 I was working on a pipeline job in
5 Lancaster, New York. And the spread man, who happened to
6 be a Swede, said, I would never have a dago working for
7 me. And a fellow who was working with me went up and
8 said, You know that guy back there is a dago?
9 And he said, The hell he is, pardon me in this
10 chamber. And he came back there and he asked me, he said,
11 Are you a dago? And I said, Yes, sir. And he said,
12 You're fired. And I was fired. And I was just a boy
13 trying to make a living so I could go back to school in
14 the fall. Well I found a job in 24 hours because I knew
15 how to weld.
16 But more recently -- that was in 1955, fast-forward
17 your VCR to May of 1996. In May of 1966 I, my wife, felt
18 compelled to make a substantial multimillion dollar gift
19 to the City of Tampa to the performing arts center and
20 name a hall for my wife. A few days later a very
21 prominent citizen in Tampa went to the newspaper and said,
22 Couldn't they get any better person than that Italian --
23 that dago is what he said -- to make that contribution and
24 name that for somebody else in this town?
25 The newspaper, the Tampa Tribune, ran double trucks
1 on the Italian community, supposedly in Tampa, and this is
2 a true story. And the assistant attorney, assistant
3 state's attorney said that everyone that had a vowel in
4 their name, if they were making money in Tampa had to have
5 Mafia connections. This was the mayor, leading doctors,
6 and business leaders of our town. Ladies and gentlemen, I
7 do not know anyone in the Mafia. I wouldn't know what
8 they look like. I only know I've worked most of all my
10 But so I dare say that everyone in this room has felt
11 those same pangs. But these proposals like this drive
12 wedges in our society. There are some politicians that
13 have attempted to do the same over time. Nobody should
14 waste a single precious hour on being politically correct.
15 There is just too much for all of us to do, not only here
16 but as citizens.
17 A few years ago I was a guest speaker at Brown
18 University. Very interesting, I might add. And before I
19 spoke I toured the campus and had a number of
20 presentations from the campus administration. They have a
21 program there called third world transition program. It's
22 supposed to help minorities feel comfortable in their new
24 And this is a quote. "All minorities are asked to
25 come on the campus three days early for indoctrination.
1 What really happens is total segregation for the next four
2 years. It is race driven, it assumes nonwhites are indeed
3 different, mere bundles of pathological permanent
4 residents, that the society of victims therefore require
5 special help." That was a quote by Mr. Peter Hammel, a
6 black author.
7 Unquestionably, slavery was unforgivable, but it was
8 a way of life in all races and has evolved over time. A
9 study of the Ottoman empire, the Hapsburgs, the Venetians,
10 yes, the Crusades, there are no exceptions in life about
11 this terrible thing. Along the way there were unspeakable
12 crimes against the newcomers, unaccountable social abuses,
13 bloody riots and the horrors of civil war. But slowly,
14 decent, intelligent men and women create a living nation
15 from the abstract principles of the state.
16 And from the very prominent Judge George Bork's book,
17 quote, "Almost 100 years ago, after the last great
18 in-migration changed the face of American society, vast
19 members of Americans, including, sadly, the best educated
20 were again being taught to identify themselves with the
21 qualifying adjectives of race, religion, ethnicity and
23 "The idea of a melting pot is dismissed as cultural
24 genocide, replaced by social workers' versions of
25 pedestrianation. American identities, state the new
1 dogma, are not shaped by will, choice, reason,
2 intelligence and desire but by membership in groups. They
3 are not individuals, but components of categories, those
4 slots and pigeonholes beloved of sociologists, pollsters
5 and the United States Census Bureau. Such categories,
6 they believe, are destiny."
7 The demands for repatriations and revision go on and
8 on. But resolution really isn't the point of all this
9 sound and fury, pardon me, he ended his. Fragmentation is
10 the point. Segregation in my view is the point. Conflict
11 is the point. We're Americans. We have been conditioned
12 to prefer conflict today, I'm afraid, to boredom. We
13 prefer, I hate to use this word, lies to truth.
14 I was looking yesterday, as we left here the other
15 day, and there was an article that the recent suicides in
16 North Dakota in the Indian tribes by young people were at
17 an all-time high. We didn't worry about the Japanese
18 being interned in California in 1942. If they moved to
19 the state of Florida, are they going to receive
21 At the same time in 1942 my father saw a man shot on
22 a tractor at a farm in California. What about the Trail
23 of Tears? We have three Native Americans in this room,
24 the Seminoles and other tribes. We cannot legislate
25 manners -- morality and manners. If any of you haven't
1 read The Nine Nations of North American, you really should
2 because it tells you a lot about our nation. So let's not
3 emulate Al Sharpton, Pat Buchanan, and Louis Farrakhan,
4 let's emulate Thomas Soul, Cesar Chevez, Thurgood
5 Marshall, Justice Frankfurter and Andrew Brimmer, and,
6 yes, Dr. Franklin who was here yesterday. I'm almost
8 Our mission is to have vision and wisdom. In 1994,
9 Cincinnati's city council passed a human rights ordinance
10 forbidding discrimination on the basis of all the usual
11 things; race, sex, sexual preferences, marital status,
12 color, religion and added one other, it forbade
13 discrimination, it forbade discrimination based on the
14 Apalachian regional origin. Where else are we going to
15 eliminate and add in to our Constitution?
16 Ladies and gentlemen, I have other things, but I
17 won't. But yesterday right here in Tallahassee
18 Dr. Franklin spoke and he didn't invoke affirmative
19 action, he invoked self-determination.
20 Jim Thorpe, the great American athlete, said it best,
21 I think, when he said, "The best kind of dependence is
23 Let's accomplish our mission with vision, with our
24 experience and wisdom. I urge you to vote no on this
25 proposal. It's not in the best interest for our state.
1 CHAIRMAN DOUGLASS: Commissioner Mills.
2 COMMISSIONER MILLS: Mr. Chairman, in the spirit of
3 equal time and equal fairness. What I would do is move to
4 extend the time to the proponents by seven minutes which
5 is the amount of time that the opponents went beyond their
6 five minutes.
7 CHAIRMAN DOUGLASS: All right. Without objection
8 that will be the case. And who is next for the
9 proponents? Commissioner Smith, you were going to close.
10 Do you still want to close or does anybody else want to
11 make a speech before we get there? All right, you're
12 recognized, Commissioner Smith.
13 COMMISSIONER SMITH: Thank you very much,
14 Mr. Chairman.
15 Commissioner Wetherington quoted Thomas Wolfe. I'd
16 like to quote Thomas Paine when he said, "These are the
17 times that try men's souls." It's not gender accurate,
18 but I think it's appropriate. Discrimination of any kind
19 is abhorrent to the ideas upon which this country was
20 founded. And whether they are discriminating against
21 Italians or women or descendents of slaves or people whose
22 native language is Spanish, it is not what this country is
23 all about.
24 I ask you to support this and think about this not
25 only in terms of this snapshot in time, but as
1 Commissioner Morsani talked about when he talked about the
2 sales tax, he said, We shouldn't deal with this because we
3 don't understand the history of all of this. Fortunately,
4 we do understand the history of those who have been
5 granted special privileges, even in our Constitution.
6 In 1838, no person shall be a representative unless
7 he be a white man. 1861, every free white male person of
8 the age of 21 years shall have the right to vote. In
9 1865, we counted every white person but three-fifths of a
10 black person.
11 And in this new Florida that you and I are privileged
12 to live, never has there been an affirmative statement
13 made that we now are no longer part of the old south.
14 We're no longer a part of a society that has, since its
15 inception, provided by Constitution, special privileges
16 for white men only, that we stepped out of that. And now
17 we are providing opportunity for all. And I think that's
18 important as we go into the 21st century.
19 This is a very modest proposal. This is not a
20 gargantuan proposal. It is a proposal that doesn't want
21 to provide for special privileges, it just wants to give
22 everybody a fair chance. When I spoke on this before,
23 Commissioner Morsani, I told you that I probably wasn't
24 the best person in the state of Florida to be appointed to
25 this commission, but I'm sure there was concern that we
1 were going to give other qualified people an opportunity.
2 And so I accepted. I didn't have the time to do it,
3 but I accepted it because I felt that I may bring a
4 different perspective on certain issues, that I knew I had
5 the ability to be here and to work and to serve and I knew
6 that would mean something.
7 Additionally, Commissioner Langley, this is not a
8 proposal where unqualified people are able to participate.
9 You have seen those examples. You have seen those
10 examples in every program that we have in Florida and
11 every program we have in America. There is fraud in
12 programs, there are errors made in programs, but this
13 proposal is not intended to allow unqualified people to go
14 to public schools, unqualified people to have public
15 housing, unqualified people to have contracting.
16 And I'm sure you will admit, Commissioner Langley,
17 that there are some unqualified whites who have gotten
18 some of these contracts because they had lobbyists or
19 because they had influence. And I don't hear you
20 complaining about that. And I'm sure over the years
21 you've been here, you've seen it and you've probably
22 fought against it.
23 This proposal allows institutions -- allows, not
24 requires -- to continue programs they have in effect or
25 adopt new programs. It does not require a public
1 institution to do anything. It only provides for an
2 opportunity to allow the public institution to institute
3 or continue a program that gives everybody a fair chance.
4 I sure wish that you heard -- listen with your heart
5 to what Commissioner Wetherington said because really
6 that's all we're trying to do. This is not about quotas.
7 It can't be about quotas. Quotas are against the law.
8 And I know you feel that, Commissioner Morsani, and
9 heartfelt, but it can't be because quotas are illegal.
10 They are illegal, and we cannot do that.
11 That's why we worked with those who are concerned
12 about it, it's a legitimate concern, to make sure that the
13 language was tailored so it couldn't even be an unintended
14 consequence. This proposal does not grant special
16 And, Commissioner Langley, I'm very sensitive to your
17 concern because we have a limited amount of spaces in our
18 public colleges. We have a limited number of spaces in
19 our public housing, et cetera. But all we're saying is
20 before they were reserved for people with special
21 privileges. All we're saying now is give qualified people
22 of all groups a chance to participate.
23 And, Commissioner Langley, I'm sure you can point to
24 an anecdotal case where it didn't happen, but for every
25 one you can point to, I can point to the Hopwood case
1 where they said the program for black scholarships was
2 unconstitutional. And 100 people who were white, who had
3 lower scores than Hopwood, were admitted to the
4 university. Nobody said anything about that. They picked
5 the one black person whose test scores were lower and
6 said, That's unconstitutional and that's unfair.
7 Additionally, it does not guarantee outcomes. It
8 does not guarantee outcomes. If you get into -- like I
9 got into the University of Miami, but I had to make the
10 grade to get out. You win a contract, you have got to
11 perform to get paid.
12 And additionally, as you cite to some fine
13 individuals, Commissioner Morsani, I hope that you also
14 talk about what Colin Powell has said about why he is
15 where he is and how he feels about this. And those of you
16 that know Commissioner J.C. Watts who made that great
17 statement on the floor of the Republican National
18 Convention about character is doing what is right when no
19 one is watching, he believes that this is the right thing
20 to do. And obviously Martin Luther King.
21 I was a product of this equal opportunity effort. I
22 don't think that that means that I have not been a part of
23 self-determination, determining what I will be, to the
24 best of my ability, based upon the opportunities that were
1 The only difference is this, Commissioner Morsani,
2 Commissioner Langley, when I applied for the University of
3 Florida in 1964, I was told I couldn't go there. So I
4 couldn't have self-determination because the door was
5 locked. When I went to Vietnam and came back and applied
6 to the University of Miami, seven blacks were allowed to
7 attend. So as a result of that, I was able to reach my
8 fullest potential.
9 I wasn't propelled because of affirmative action, I
10 was propelled because of my work ethic. I was propelled
11 because I got a fair chance and I made the best of it.
12 That's all we're saying here, give everybody a fair chance
13 and let them have an opportunity, just like an immigrant
14 like you who got a chance, and in spite of discrimination
15 and in spite of unfairness made the best that he could be.
16 And if you hadn't gotten the chance, I wouldn't have
17 gotten the chance to meet you and serve with you. I
18 understand how heartfelt your position is about this.
19 This is a debate about the conscience of Florida and what
20 we're going to be in the 21st century.
21 And I am proud of the fact that I got an opportunity
22 and that history will reflect that I was on the right side
23 of an issue concerning giving everybody a fair chance on
24 the right side of history. And a lot of people in our
25 past in Florida wish they had thought about things
1 historically so they could have been on the right side of
2 history. And I ask you to vote yes for this chance to
3 give everybody in Florida a fair chance and be on the
4 right side of history. Thank you.
5 CHAIRMAN DOUGLASS: All right. Having closed on the
6 proposal, we'll open the machine and vote.
7 (Vote taken and recorded electronically.)
8 CHAIRMAN DOUGLASS: Has everybody voted? Lock the
9 machine and announce the vote.
10 READING CLERK: Twenty-one yeas, 10 nays,
11 Mr. Chairman.
12 CHAIRMAN DOUGLASS: By your vote you've adopted
13 Proposal No. 2. We will now move to Proposal No. 58 by
14 Commissioner Zack. Does the committee have anything on
15 that, Commissioner Lowndes?
16 COMMISSIONER LOWNDES: I'm not sure. The committee
17 did, I think, have a different, somewhat different opinion
18 of the effect of this amendment. And we had some
19 testimony from a local attorney which indicated -- let me
20 say it this way.
21 The committee felt, I think -- at least some of the
22 members including myself had the impression that this was
23 an amendment dealing with eliminating the age
24 discrimination in the malpractice wrongful death act.
25 Actually, it has a much broader -- not a much broader, but
1 a broader application than that in it eliminates, it
2 changes the wrongful death act generally. And it was not
3 just remedying the problems we heard at the public
4 hearings, it is a much broader change, which I'm sure
5 Mr. Zack can explain.
6 CHAIRMAN DOUGLASS: I think that's correct. I
7 remember it. He said it applied to all actions for
8 wrongful death but it was designed to remedy the one we
9 heard the most about, which was medical caregivers, which
10 is what we heard about all through the public hearing; was
11 it not?
12 COMMISSIONER LOWNDES: Yes, and it does remedy that,
13 but it also makes other changes.
14 CHAIRMAN DOUGLASS: Right. At the present time,
15 though, that's the only one the age limitation is on; is
16 that right?
17 COMMISSIONER LOWNDES: No, this amendment --
18 CHAIRMAN DOUGLASS: No, I mean in the present law.
19 COMMISSIONER LOWNDES: No, in the wrongful death act,
20 the non-malpractice wrongful death act, if there is a
21 surviving spouse, only minor children can recover
22 noneconomic damages. If there's not a surviving spouse,
23 any children can recover noneconomic damages.
24 CHAIRMAN DOUGLASS: Okay. We'll let Commissioner
25 Zack explain that. And we'll read it first and then he
1 can explain it.
2 READING CLERK: Proposal No. 58, a proposal to revise
3 Article I, Section 21, Florida Constitution; providing
4 that the right to recover in an action for personal injury
5 or death may not be denied because of age.
6 CHAIRMAN DOUGLASS: Commissioner Zack.
7 COMMISSIONER ZACK: The Chairman's recollection is
8 correct that it applies to all actions in wrongful death.
9 There was some discussion as to how, there was a
10 limitation in the malpractice action and how that occurred
11 and various deals that might have gone on, but that was
12 not the intent here.
13 This is purely an intellectual fairness amendment
14 that says it just makes no sense to have an age
15 limitation. Frankly, it is something that when a loss --
16 as a matter of fact, the Florida Constitution, as we know,
17 very clearly says there should be no wrong without a
19 And to say that -- and I don't believe that this is
20 the time to reiterate everything that went on during the
21 course of the debate but for those of you who recall, I
22 described the example of minor children, one who turned 25
23 two weeks ago and the other one who was 23 and the effect
24 of the law as it presently exists that would give one a
25 cause of action and one would not have cause of action
1 under the wrongful death action and it made no sense
3 Frankly, I think that this has been debated. I'll be
4 happy to answer any questions. I'd like to see us proceed
5 with this. I think it's an important matter that we heard
6 all around the state from people who, again, came to this
7 chamber recently with other examples of how this law as it
8 is presently being applied is patently unfair and frankly
9 outrageous to those people who are affected.
10 There should be no way in the world that a person
11 should die at the hands of another individual and that
12 their children shouldn't be able to seek redress if it is
13 believed to be appropriate by a jury of their peers. But
14 I'll be happy to answer any questions.
15 CHAIRMAN DOUGLASS: Commissioner Wetherington for a
17 COMMISSIONER WETHERINGTON: The Legislature changed
18 that age limit from 18 or so to 25, didn't they, in the
20 COMMISSIONER ZACK: Yes, they did.
21 COMMISSIONER WETHERINGTON: Is there any indication
22 that the Legislature is unwilling to consider changing
23 this tort provision like they do any other provisions of
24 our tort law?
25 COMMISSIONER ZACK: I think there is a universal
1 agreement that there is no desire to change it, nor would
2 it be possible to be changed under the current
4 COMMISSIONER WETHERINGTON: This is just one little
5 provision of the Florida wrongful death law.
6 COMMISSIONER ZACK: It's not one little provision, it
7 is a cause of action for everybody who is over 25 years of
9 CHAIRMAN DOUGLASS: Further questions? Commissioner
11 COMMISSIONER BARKDULL: Commissioner Zack, you
12 mentioned the 25 years of age just now in that reply.
13 That's a statutory designation of rights up until the age
14 of 25; correct?
15 COMMISSIONER ZACK: That's correct.
16 COMMISSIONER BARKDULL: If this is put into the
17 Constitution, would the Legislature still have the power
18 to abolish completely wrongful death actions?
19 COMMISSIONER ZACK: Absolutely, and this does nothing
20 to change that right.
21 COMMISSIONER BARKDULL: Thank you.
22 CHAIRMAN DOUGLASS: Commissioner Scott.
23 COMMISSIONER SCOTT: Commissioner, we discussed this
24 when it came out of Style and Drafting, but this
25 provision, as I understand it, would eliminate age
1 regardless of whether it's medical malpractice or any
2 other tort action for wrongful death. So isn't it true
3 that if the Legislature wanted to still maintain some
4 special status for medicine, that in order to do that they
5 would then have to eliminate wrongful death noneconomic
6 damages or perhaps the entire action for all children
7 regardless of age?
8 COMMISSIONER ZACK: That's the same question that
9 Commissioner Barkdull just asked in another way. And the
10 answer is yes.
11 COMMISSIONER SCOTT: So if they wanted to still
12 maintain what the statute says, the action would then be
13 to go in the opposite direction of what you're going and
14 further limiting the right to recover noneconomic damages,
15 not only in medical malpractice but they would have to do
16 it in everything for children.
17 COMMISSIONER ZACK: If the Legislature would
18 eliminate all the rights of the people in the state of
19 Florida regarding wrongful death and go home and stand for
20 election on that basis, they would have the right to do
22 COMMISSIONER SCOTT: Was that a yes?
23 COMMISSIONER ZACK: That was an unqualified yes.
24 COMMISSIONER SCOTT: Okay.
25 CHAIRMAN DOUGLASS: Further questions? Opponents?
1 Commissioner Ford-Coates.
2 COMMISSIONER FORD-COATES: Commissioners, I have some
3 real concerns about this proposal, two in particular.
4 One, I think it can be handled legislatively. And as
5 I talked to other attorneys, I think that's the
6 appropriate place to put it.
7 And secondly, I've had a conversation with two of the
8 public hospitals in my area and a lengthy discussion
9 trying to understand what exactly -- what kind of impact
10 this would have. And I was told by them that the cost to
11 defend any kind of a wrongful death suit ranges between 45
12 and $150,000. I've also been advised by them that
13 frequently they settle these suits ahead of time. They do
14 acknowledge -- there are honest people in the industry,
15 I'm sure there are some exceptions -- but they do
16 acknowledge when mistakes are made and deal with those.
17 But the one thing I heard in talking to people in the
18 hospital industry that really made me think twice about
19 this was when they talked about the stages of grief. We
20 have a lot of elderly in this state, people die. And they
21 don't always die because of malpractice. And when the
22 survivors are dealing with that death, the first stage is
23 denial and the second stage is anger.
24 And frequently within that second stage people want
25 to strike out and do something to deal with the pain that
1 they are suffering. And frequently that pain is reflected
2 in filing suit, whether or not that suit has a sound
4 And I would submit to you that I don't think we know
5 the unintended consequences of this proposal and that
6 because of that, it is better dealt with by the
7 Legislature who can respond if the consequences are other
8 than we intend, which is to provide a remedy in those
9 cases where there is a problem. I submit to you not all
10 cases are valid and I would say that we need to approach
11 this with great concern.
12 CHAIRMAN DOUGLASS: Commissioner Freidin as a
14 COMMISSIONER FREIDIN: Commissioner Ford-Coates and
15 other Commissioners, I couldn't agree with you more
16 completely. Not all cases are valid, but that is not a
17 reason to disallow valid cases where people are killed as
18 a result of malpractice. That is the problem here.
19 There is a whole category of malpractice -- of people
20 who are injured as a result of negligent acts, malpractice
21 or other negligent acts, a whole category of people that
22 have been eliminated from the ability to recover. And as
23 I am sure all of you remember as we went around the state
24 at our public hearings, there was no more compelling
25 testimony than that that we heard from the victims, from
1 the children of victims of malpractice or from the parents
2 of victims of malpractice or other negligent acts.
3 In fact, I quote from the Miami Herald. "Few
4 witnesses were more compelling than the two women who
5 appeared before the panel in Fort Lauderdale to talk to us
6 about this subject." To say that we don't want to fix
7 this problem just because there are some cases that aren't
8 valid cases is not an answer that I can accept. This is a
9 very serious problem. There is an entire category of
10 people who are precluded from bringing suit and that ought
11 to be remedied. That ought not be the law.
12 What happens in our state, and I'm sure it happens
13 all over the country, in nursing homes and in hospitals
14 there are elderly people who maybe just don't get the kind
15 of care they need just because they are elderly or maybe
16 because they are so infirm that they can't advocate for
17 themselves. And those are the people that we need to be
18 thinking about when we consider whether or not to push the
19 green button or to push the red button on this particular
20 proposal. I urge you to push the green button.
21 CHAIRMAN DOUGLASS: Commissioner Scott.
22 COMMISSIONER SCOTT: Okay. Let me emphasize, this is
23 a good example of why this matter should be left to the
24 Legislature. Now I told you before when we debated this
25 that for years I was a proponent, I think, in trying to
1 expand some right of recovery for wrongful death in this
2 state. It was not until like 1989 or '90 that we were
3 able to do that.
4 Now what can happen here, if you go in and put this
5 one requirement in, now there is going to be an effort to
6 reverse that. You can't believe that I spent ten years up
7 here and you couldn't pass this in spite of some of the
8 impassioned pleas that you heard. So now we're going to
9 have it perhaps eliminated, noneconomic damages, for all
10 wrongful death when we do have them right now for
11 everything but malpractice? Is that right? Probably not.
12 I have voted, as I told you, to take that exception out of
14 But if you put this in the Constitution, then there
15 is going to be an either/or and we don't know what other
16 either/ors might happen that could go the opposite way.
17 So I really feel like it shouldn't be in the Constitution
18 even though I am sympathetic and support the idea
19 regarding medical malpractice not being treated
21 CHAIRMAN DOUGLASS: Commissioner Zack to close.
22 COMMISSIONER ZACK: You know, as I've experienced
23 this Constitution Revision Commission process, I have
24 learned a lot of things about a lot of issues, many that I
25 never thought about before being part of this process.
1 But there is one thing that has become clear to me,
2 that we all try to do what is right. However, we all
3 come -- we don't come fresh born into these chambers. We
4 each come from a background and each of us were appointed
5 because of some relationship we have with, in most
6 instances, government.
7 The fact is that if we didn't have some relationship
8 with government, then we probably wouldn't be sitting
9 here. And we each have interests in speaking for
10 hospitals. I know I sat on the public health trust for
11 Dade County, that's Jackson Memorial Hospital, one of the
12 biggest hospitals in the country, if not the world. And I
13 know they don't like this bill. Lobbyists told me that
14 over lunch. And I know nursing homes don't like this
15 bill, another lobbyist told me that over lunch. And I
16 know that big business doesn't like this proposal, and
17 another lobbyist told me that over lunch.
18 But who speaks for the victims? Who speaks for the
19 victims if we don't? And, Commissioner Coates, when we go
20 to our public hearings, Ford-Coates, when we go to our
21 public hearings, I hope to hear from all those
22 institutions that paid claims that they didn't have to pay
23 for people who were injured and suffered a wrongful death
24 who were over 26 years of age. I'm sure there will be a
25 stream of those. I suggest to you they will be few and
1 far between.
2 I also suggest to you that we cannot look at the face
3 of a 26-year-old Floridian whose parent has just been
4 butchered and say, You have not suffered a loss, but
5 you're entitled to your day in court, not for an invalid
6 claim, but for an absolutely valid claim where today what
7 we heard in our hearings around the state was they
8 basically got a laugh, a wave and a goodbye.
9 Let's make sure that somebody speaks for those
10 victims. And you can speak for those victims by pressing
11 the green button today.
12 MR. CHAIRMAN: All right. Unlock the machine and
13 let's vote.
14 (Vote taken and recorded electronically.)
15 CHAIRMAN DOUGLASS: Lock the machine and announce the
17 READING CLERK: Eleven yeas, 20 nays, Mr. Chairman.
18 CHAIRMAN DOUGLASS: By your vote -- Commissioner
20 COMMISSIONER ZACK: I would yield to Commissioner
22 CHAIRMAN DOUGLASS: Commissioner Connor.
23 COMMISSIONER CONNOR: Mr. Chairman, seeing my good
24 friend Commissioner Zack licking his wounds provokes a
25 profound sympathy reaction in me for him. And therefore
1 having voted on the prevailing side with respect to
2 Proposal 59, as amended by Amendment 59A, I move to
3 reconsider the vote by which that proposal failed.
4 CHAIRMAN DOUGLASS: The one we were just on was 58.
5 COMMISSIONER CONNOR: Yes, sir, and I'm specifically
6 addressing 59 which was sovereign immunity as amended by
7 Commissioner Lowndes.
8 CHAIRMAN DOUGLASS: I understand. That was the one
9 we took up yesterday.
10 COMMISSIONER CONNOR: I voted against him -- well I
11 voted for him actually on that last occasion, but I hate
12 to see him steamrolled so badly that he can't get another
14 CHAIRMAN DOUGLASS: He got introduced to the
15 wonderful world of lunch.
16 COMMISSIONER ZACK: It wasn't a good lunch. But, you
17 know what, they were right.
18 CHAIRMAN DOUGLASS: They ate your lunch.
19 COMMISSIONER ZACK: This was the matter -- we're just
20 dealing with the Lowndes proposal, which has been
21 substituted for 59. And that was defeated 15 to 16. And
22 Commissioner Connor and I have been told by several other
23 people in the chamber that voted against it wish that to
24 proceed to the public hearings at the very least.
25 CHAIRMAN DOUGLASS: Okay. We'll set it at the proper
1 time, and note a motion to reconsider, Commissioner
2 Barkdull, has been made on No. 59. You have until
3 tomorrow or the next day to move on anything today. Now,
4 we will move on to -- yes, Commissioner Scott.
5 COMMISSIONER SCOTT: The Style and Drafting Committee
6 had been discussing and going over the number of proposals
7 that we might be able to finish today or soon, and I'm not
8 sure what that does to the status of reconsiderations.
9 CHAIRMAN DOUGLASS: It doesn't do anything under the
10 rules. At this time I don't think it's appropriate
11 because we're not along far enough. We're going to be
12 here tomorrow morning.
13 COMMISSIONER SCOTT: My point was that since this
14 procedure was set up as a separate type thing different
15 from the rules, doing this this week and we agreed to do
16 it, I'm not sure what rules apply on reconsideration.
17 CHAIRMAN DOUGLASS: In other words, you're saying
18 what -- the rule says that if it's defeated, it's lost
19 after this week. So you have to move to reconsider those
20 that were defeated to have them heard again. The ones
21 that passed by majority vote you don't have to move to
22 reconsider because they are going to be reconsidered at
23 the next meeting by a show of five hands.
24 So there is no -- under the rules, he has to move to
25 reconsider something that lost in order to have it heard
2 COMMISSIONER SCOTT: But my question was when are you
3 going to take them up?
4 CHAIRMAN DOUGLASS: Well, we'll see. How far we get
5 today will have a lot to do with what we do because we
6 have, under the rules they can wait until tomorrow or the
7 next business day to move on anything that lost today.
8 Commissioner Mills.
9 COMMISSIONER MILLS: Mr. Chairman, this is just to
10 clarify. I think this is what you said. What you said is
11 you're entitled to move to reconsider because none of the
12 rules that we passed changed the existence of the motion
13 to reconsider. If that were not taken up today or
14 tomorrow, then it would expire because --
15 CHAIRMAN DOUGLASS: That's correct.
16 COMMISSIONER MILLS: -- because at that point in time
17 all of these proposals are either passed to go to public
18 hearings and then will come back to first or they die; is
19 that -- I mean, perhaps the Rules Chairman can clarify
21 CHAIRMAN DOUGLASS: That's correct. The question
22 that really you pose is if one of these -- or you move to
23 reconsider it and you don't take it up tomorrow, then we
24 come back for our next meeting, can you then take it up.
25 If it's one that failed, my answer to that would be as you
1 amended the rule, no, because what we're coming back for
2 is a restricted order of business which is to act to
3 reconsider, if it is requested, on all matters by a show
4 of five hands, whatever they were.
5 We didn't amend the rule, we adopted the procedure
6 that we're going to do at the next meeting. So the answer
7 is we're going to have to take up anything that loses
8 today or yesterday, and then moved today, has to be taken
9 up tomorrow in the order of business. That's right, isn't
10 it, Commissioner Barkdull?
11 Okay. Commissioner Lowndes.
12 COMMISSIONER LOWNDES: I'd just like to point out
13 that 59 lost in a vote which was not under this procedure.
14 It's only been voted on one time, it was not under this
15 procedure we're now acting under now.
16 CHAIRMAN DOUGLASS: Let's move on, we'll sort this
17 out. I think what we're going to say is that if you
18 really want to bring it up, you have got to bring it up
19 tomorrow, by tomorrow, no question about it. We'll be
20 here, not much doubt. Commissioner Zack.
21 COMMISSIONER ZACK: One way or another is there any
22 reason not to bring it up now?
23 CHAIRMAN DOUGLASS: Yes, there is a reason not to
24 bring it up now. We have about 20 things left to do and
25 we need to get on with it. Let's go. The next proposal
1 is No. 187 by Commissioner Connor. Would you read it,
3 READING CLERK: Proposal No. 187; a proposal to
4 revise Article I, Section 3, of the Florida Constitution;
5 limiting conditions for the restrictions on the free
6 exercise of religion.
7 CHAIRMAN DOUGLASS: Commissioner Connor -- I presume
8 Style and Drafting wants Commissioner Connor to present
9 this. There is an amendment. There is an amendment. No,
10 no, this is to a different one; isn't it? No?
11 Commissioner Butterworth has an amendment on the desk on
13 First of all, did we read the proposal? Now let's
14 read the amendment.
15 READING CLERK: By Commissioner Butterworth, on Page
16 1, Line 17, after the word "religion," and insert, "except
17 for persons held in criminal or civil custody under
18 judicial order."
19 CHAIRMAN DOUGLASS: Before we get to the amendment,
20 I'm going to ask Commissioner Connor to explain the
21 proposal that's already passed once. But explain it and
22 then we'll go to the amendment, Commissioner Connor.
23 COMMISSIONER CONNOR: Yes, Mr. Chairman. You may
24 recall, I believe that this proposal previously passed 23
25 to 3. It had the overwhelming support of this body.
1 Just simply by way of refreshing your recollection,
2 you may recall that in 1990 the United States Supreme
3 Court in the case of Employment Division versus Smith
4 lowered the standard of review for laws of general
5 application that burdened the exercise of religious
6 freedom from a compelling governmental interest -- in
7 other words, the requirement was to demonstrate a
8 compelling governmental interest -- narrowly tailored to
9 accomplish the purpose, to in effect saying that if a law
10 of general application negatively impacted on the free
11 exercise of religion, then that compelling interest
12 standard would no longer apply.
13 That ruling provoked an enormous hue and cry from all
14 corners of the country. Theologically liberal and
15 theologically conservative groups, politically liberal and
16 politically conservative groups, Christian, Jewish, Muslim
17 groups rose up in such overwhelming reaction to the
18 court's erosion of religious liberty that it passed the
19 Religious Freedom Restoration Act.
20 That act is essentially embodied in the proposal that
21 we now have before us which would provide that the state
22 or any political subdivision or agency thereof may not
23 substantially burden the free exercise of religion, even
24 if the burden results from a rule of general
25 applicability, unless the state demonstrates that
1 application of the burden is in furtherance of the
2 compelling interest and is the least restrictive means of
3 furthering that compelling interest.
4 What this does is to grant the people in Florida, as
5 it relates to laws, ordinances or rules or regulations
6 promulgated by the state or its subdivisions, a greater
7 amount of religious freedom than is currently recognized
8 under the U.S. Supreme Court ruling in the Smith decision.
9 The Religious Freedom Restoration Act, which Congress
10 passed, was struck down by the court who said, in effect,
11 that Congress didn't have the power to pass that out.
12 But we know and the court has indicated that states
13 are free to pass those kinds of acts in their own states.
14 And we know that in Florida we can accord, while we cannot
15 accord less protection than is accorded under the Federal
16 Constitution to our citizens, we can accord greater
17 protection. Florida, in passing this proposal, will be in
18 the vanguard leading the way for the other 50 states to
19 reaffirm the importance of religious liberty in their
21 And I dare say all eyes are watching Florida in this
22 regard. Nothing could be more important, I would suggest
23 to you, than the protection and preservation of religious
24 liberty in our state. It was the desire for religious
25 liberty that resulted in the founding of this country and
1 it is a right that is cherished and for which many people
2 have bled and died. And I urge your positive support of
3 the proposal.
4 CHAIRMAN DOUGLASS: All right. I might remind you
5 that the last one that lost passed by a vote of 21 to 7 on
6 its previous vote. So that's not indicative that it's a
7 slam dunk. And you have a question, Commissioner Kogan?
8 COMMISSIONER KOGAN: Yes, I have a couple of
9 questions if I might. Commissioner Connor, can you give
10 me a practical example of what is in your particular
11 amended proposal?
12 COMMISSIONER CONNOR: In other words, how --
13 COMMISSIONER KOGAN: In other words, pick out an
14 example and tell me how this would apply to it.
15 COMMISSIONER CONNOR: Well a zoning ordinance, which
16 may affect the siting of a church, for example, a
17 licensing ordinance that might otherwise affect the
18 listing of pastors or rule or regulation, things of that
20 COMMISSIONER KOGAN: How about if a group of students
21 are praying at the entrance of a public school and there
22 is a state law or perhaps even a county ordinance that
23 says that you can't do that if you're blocking the ingress
24 and egress of other students?
25 COMMISSIONER CONNOR: I think the state would clearly
1 have a compelling interest in protecting the health and
2 safety. I think that would be narrowly tailored and would
3 not in any way be impeded by the passage of this proposal.
4 CHAIRMAN DOUGLASS: Okay. Commissioner Connor, I was
5 asked to ask a question. Does this in any way affect the
6 question of using state money to send students to
7 parochial schools?
8 COMMISSIONER CONNOR: No, sir, nor would it affect
9 issues relating to prayer in schools.
10 CHAIRMAN DOUGLASS: So it's strictly a balancing
11 amendment is what you're telling us?
12 COMMISSIONER CONNOR: Well, no, it's not a balancing
13 amendment in this respect. What it is is it says simply
14 if -- what happened was the standard seemed to be changed
15 under the Employment Division vs. Smith case, which said
16 that where you had a law of neutral application, in other
17 words, where it wasn't intended to affect religious
18 practices, but did burden religious practices, then under
19 a law that was neutral, in effect virtually any interest
20 that the state had in passing that law, even though it
21 incidentally burdened the exercise of religious freedom,
22 would be sustainable under a constitutional challenge.
23 This proposal would reinvoke what historically before
24 the Employment Division vs. Smith decision in 1990, would
25 reinvoke that standard. In other words, that before you
1 could have a statute that burdened the exercise of
2 religious liberty, the state would have to demonstrate a
3 compelling interest and regulation would have to be
4 narrowly tailored to accomplish that interest.
5 And I think Commissioner Kogan has pointed out a
6 classic example, protection of health and safety of school
7 children, where that compelling interest is manifestly
8 apparent, and in that particular instance would be
9 narrowly tailored to accomplish that purpose.
10 CHAIRMAN DOUGLASS: All right. There is an amendment
11 on the table by Commissioner Butterworth, which he moves.
12 Would you read the amendment, please?
13 READING CLERK: By Commissioner Butterworth, on Page
14 1, Line 17, after the word "religion," insert, "except for
15 persons held in criminal or civil custody under judicial
17 CHAIRMAN DOUGLASS: Commissioner Butterworth, you're
19 COMMISSIONER BUTTERWORTH: Thank you, Mr. Chairman.
20 I was not here during the original debate of this
21 particular bill or amendment and I apologize for that.
22 This issue might have been taken up or it may not have.
23 When the United States Congress passed their
24 legislation, they received concerns for all 50 Department
25 of Corrections throughout this country, including our
1 Department of Corrections and most of the United States
2 Attorney Generals. And they were concerned that the way
3 this is written it will handcuff the ability of our
4 sheriffs and Department of Corrections to properly run the
5 jails and prisons.
6 When you and I think about religion, we think about
7 religion, the normal religion that you will see, a church
8 on a street corner or even in a shopping center, whatever.
9 Many people who suddenly get themselves into a prison,
10 many of them find religion, what we concede to be
11 legitimate religions. Others find very strange religions.
12 And if in fact they are not allowed to practice their
13 particular newfound religion, they will file a lawsuit.
14 We've had lawsuits such as persons desiring to be
15 able to have white wine every night, because it's part of
16 their religion, a steak and a virgin. We have had
17 other --
18 (Off-the-record comment.)
19 COMMISSIONER BUTTERWORTH: A virgin.
20 (Off-the-record comment.)
21 (Commissioner Thompson assumes the Chair.)
22 COMISSIONER THOMPSON: I don't think there is
23 anything you can say right now that will help. I think
24 I'd just continue with my explanation.
25 COMMISSIONER BUTTERWORTH: I'll try my best.
2 COMMISSIONER BUTTERWORTH: But some of the cases --
3 we handle all these cases in the Attorney General's
4 Office. And what is happening now in our corrections
5 system, you will find that the, if anyone wishes to
6 practice their religious beliefs or has special diets,
7 that will be done.
8 But the problem really comes into effect when they
9 actually -- when we start talking about people wanting to
10 bring in pornography because they consider that to be a
11 religion. And in fact one of them was -- we had inmates
12 file a lawsuit because they claimed Gallery Magazine
13 qualified as religious material. And they were joined by
14 the magazine's publisher who agreed also, he thought it
16 We have the request for pornographic material to aid
17 in rituals. You can imagine what those rituals might be.
18 We have white supremacists, we have hate groups that
19 consider their particular religion to be just that.
20 So what you're doing here is to elevate each and
21 every one of these cases to where we will have to have a
22 judicial hearing before it's determined that that
23 particular type of religion is not a religion. And you're
24 going to put a tremendous burden, I believe, upon the
25 various sheriffs and our own Department of Corrections.
1 And I would urge the adoption of this amendment.
2 COMISSIONER THOMPSON: Is there debate on the
3 amendment as offered by Commissioner Butterworth?
4 Commissioner Connor.
5 COMMISSIONER CONNOR: I'd like to speak in opposition
6 to it.
7 COMISSIONER THOMPSON: You're recognized.
8 COMMISSIONER CONNOR: Ladies and gentlemen, a similar
9 provision was considered and rejected by the Declaration
10 of Rights Committee, in part because it meant that we lost
11 the broad-based coalition. As I say, that coalition
12 included Christians, Jews, Muslims, the ACLU, Pat
13 Robertson's group, you name it, everybody had joined into
15 The reason that I would suggest to you -- and the
16 addition of this language will break that coalition down,
17 and we have already had that testimony before our
18 committee. The reason I would suggest to you that it's
19 not necessary is that it is easy for the state to
20 demonstrate a compelling interest in regulating the
21 religious practices of people in custody.
22 I'm aware of only one case in which a regulation was
23 stricken down under RFRA while it was in effect. And in
24 that case the court held that the continuous confinement
25 of a Rastafarian inmate in medical lockup for refusal to
1 submit to screening tests for latent tuberculosis was not
2 the least restrictive means to further New York's
3 compelling governmental interest in protecting inmates
4 from disease when the prison could have subjected the
5 inmate to a chest X-ray as an alternative.
6 Now that's a good example, I think, of balancing the
7 tensions that Commissioner Kogan pointed out that come
8 into play. I urge you in the strongest of terms to reject
9 the proposed amount, to go forward with the proposal as it
10 has been set forth and previously approved.
11 And would suggest to you, I would suggest to you,
12 Commissioner Butterworth, that if not on this issue,
13 you're never going to stop prisoners from filing
14 collateral lawsuits from the prison cells. I mean, they
15 are going to find any number of different kinds of things.
16 When you have got that much time on your hands and you
17 grow that tired of being in lockup, the fertility of the
18 imagination is almost beyond bounds. So please, I urge
19 you to protect this language as it was only proposed,
20 preserve the coalition, and grant Floridians an enhanced
21 measure of protection of religious liberty.
22 Thank you.
23 COMISSIONER THOMPSON: Further debate on the
24 amendment? Commissioner Smith.
25 COMMISSIONER SMITH: Thank you, Mr. Chairman.
1 As Chair of the Declaration of Rights Committee, I
2 can tell you that when this proposal came forward I was
3 very, very suspect. And then we took the testimony from
4 this broad-based coalition, as you said, of Jews and of
5 Christians and of Muslims, et cetera, that held
6 together -- who have researched this issue extensively and
7 found out that the only thing that broke up the coalition
8 was this particular provision.
9 Then I had to ask the question of myself: Well, if
10 in fact this will prevent our prisons from, in fact,
11 allowing prisoners to have some of the most bizarre type
12 of, quote, religious practices, end quote -- and we read
13 about some of them. And this is a family-oriented
14 program, we don't need to say them out in the open, but, I
15 mean, they are really outrageous.
16 Once I was convinced that the law is that a
17 demonstration of a compelling state interest will allow
18 our prison system to regulate it, and that's why the
19 coalition could stay together, I was prepared to go
20 forward. When it came forward before, this came up and I
21 voted in favor of it then.
22 So I ask you to vote no on the amendment because a
23 compelling state interest will allow our prison system to
24 prevent ridiculous allegations of religious practice to
25 include the wine and whatever else comes with the wine.
1 COMISSIONER THOMPSON: Commissioner Barnett, for what
3 COMMISSIONER BARNETT: To ask a question please of
4 either Commissioner Smith or Commissioner Connor.
5 COMISSIONER THOMPSON: Commissioner Smith, do you
6 yield to a question from Commissioner Barnett?
7 COMMISSIONER SMITH: Yes, either myself or
8 Commissioner Connor.
9 COMMISSIONER BARNETT: My curiosity is killing me.
10 I'd like to know what part of the coalition you lost as a
11 result of this provision, but more importantly I'd like to
12 know why. What were the substantive reasons that whatever
13 group it is felt that this would destroy the delicate
14 balance? I think those of us who weren't on the committee
15 need to hear that.
16 COMISSIONER THOMPSON: Commissioner Connor to
18 COMMISSIONER CONNOR: Mr. Spaulding on behalf of ACLU
19 indicated it would lose their immediate support and that
20 they had been in lockstep with all of the other groups
22 And let me say this, ladies and gentlemen, and I have
23 been involved in lobbying and being engaged in corrections
24 reform issues in the past. I'll tell you, I have great
25 sensitivity to the rights and needs of people who are in
1 custody to be able to exercise their religious beliefs. I
2 don't have much sympathy for those who ask for wine and
3 virgins and all the other stuff that the Attorney General
4 has made reference to, and neither do the courts.
5 And we shouldn't let the most bizarre, outrageous
6 kinds of complaints derail one of the most important
7 liberty interests that we can protect in our state. And
8 the explanation simply was that they felt -- we had
9 language that in effect said that there would be a lowered
10 standard for people who are in custody and to protect the
11 penological interest. And the view, frankly, was, look,
12 there is just not any difficulty demonstrating the
13 government has a compelling interest in this regard, and
14 narrowly tailoring those.
15 So, you know, I think frankly, my own experience has
16 been, having worked with Chuck Colson and others, that
17 religious faith is one of the biggest single factors that
18 helps prevent recidivism within the prisons, that helps
19 preserve order within the prisons. And I'm not one of
20 those who wants to just beat on prisoners all the time, I
21 just am not.
22 And I think that we can protect the legitimate
23 interest of the state. And clearly the state has a
24 legitimate interest in restricting the practices and
25 activities of people who are in custody. But it will not
1 be unduly burdened, I would suggest to you, in meeting the
2 standards set forth.
3 COMISSIONER THOMPSON: Okay. Commissioner Sundberg,
4 for what purpose?
5 COMMISSIONER SUNDBERG: For a question, please.
6 COMMISSIONER THOMPSON: For a question. Commissioner
7 Connor, do you yield? He yields.
8 COMMISSIONER SUNDBERG: What about practices that
9 relate to diet that would, say -- could greatly increase
10 the cost of the prison operation? That's just one of the
11 examples that I have seen on one of these 20/20 or one of
13 They want exotic -- can the state say, We have a
14 compelling state interest in serving all the inmates the
15 same kind of food as opposed to saying, Well, you know,
16 for the free exercise of religion it's important that they
17 are entitled to their -- or if they have a bonafide
18 dietary -- I just don't know if it's perceived to be a
19 compelling state interest and they could say, No, we don't
20 have to do that because of the cost involved.
21 COMMISSIONER CONNOR: I believe the state does have a
22 legitimate and compelling interest in that regard.
23 COMMISSIONER SUNDBERG: Do you equate legitimate with
25 COMMISSIONER CONNOR: Yes, yes, I mean -- no, no, no,
1 no. Legitimate can be a lower standard. I believe the
2 state has a legitimate compelling interest in that regard.
3 COMMISSIONER SUNDBERG: All of that good stuff.
4 COMMISSIONER CONNOR: And also I think we have to
5 take into account, and the courts do take into account,
6 the legitimacy of the religious beliefs and practices at
7 issue. And we shouldn't overlook that fact.
8 COMMISSIONER THOMPSON: Okay. Commissioner
9 Butterworth to close.
10 COMMISSIONER BUTTERWORTH: Okay.
11 COMMISSIONER THOMPSON: Excuse me, excuse me,
12 Commissioner Barnett has a question of Commissioner
13 Butterworth. Would you yield to a question before you
14 close? He yields.
15 COMMISSIONER BARNETT: Most of the discussion has
16 related to those who are incarcerated in our criminal
17 system, but your amendment goes to civil custody as well.
18 And I was wondering what you envision by that and why the
19 problems might be the same in a civil custody as in a
21 COMMISSIONER THOMPSON: Commissioner Butterworth.
22 COMMISSIONER BUTTERWORTH: Commissioner, that was put
23 in for the Baker Act cases and the other forensic mental
24 wards such as Chattahoochee and others like that where
25 someone is actually committed.
1 (Off-the-record comment.)
2 COMMISSIONER THOMPSON: I think you are on, you just
3 are going to have to get right in it.
4 COMMISSIONER BUTTERWORTH: Right in there.
5 That's put in in order to take care of that situation
6 on forensic wards, criminal forensic wards such as
7 Chattahoochee or the Baker Act commitments, such as that.
8 COMMISSIONER BARNETT: Would it be limited -- I mean,
9 are there other kinds of civil custodies that might be
10 implicated by that language other than Baker Act or
11 forensic mental wards or something?
12 COMMISSIONER BUTTERWORTH: If it is affected, I have
13 no problem in taking it out. My main issue is the issue
14 of the prisons. When Congress passed this a number of
15 years ago, one of the major issues in the Senate was the
16 prison issue. And Governor Bob Graham helped lead that
17 particular battle in order to exempt out the prisons. And
18 I think it passed like 54 to 46.
19 The issue that we had was that even though, before it
20 was held unconstitutional, a number of United States
21 Senators that were pushing for this said they made a
22 mistake of not exempting out the prisons because of what
23 was happening in their particular states where every
24 Attorney General in this country has actually had --
25 literally the floodgates were opened from the standpoint
1 in the past a case would be summarily dismissed because it
2 was just ludicrous. But now we actually have many more
3 court hearings.
4 And since it is now more of a right, the inmates will
5 develop and design and invent new religions each and every
6 day. It is a real problem. I can sense the vote here,
7 I'm not going to prevail on this amendment, but I do
8 believe it is going to be a tremendous problem for our
9 sheriffs and for the Department of Corrections.
10 And perhaps in our public meetings maybe we'll hear
11 from some of the sheriffs and the Department of
12 Corrections' members and come up with some type of
13 amendment that will take care of the issue. Because I
14 think we are all talking about the same thing. We don't
15 want to open it up, but we don't want to also burden the
17 So there might be better language I can come up with.
18 And if that is the sense of the body, I have no problem
19 withdrawing this and coming up with a better amendment
20 than this one because I don't think that I have got the
21 votes to prevail.
22 (Off-the-record comment.)
23 COMMISSIONER BUTTERWORTH: I'll be glad to work with
24 you on it.
25 COMMISSIONER THOMPSON: What is your pleasure,
1 Commissioner Butterworth?
2 COMMISSIONER BUTTERWORTH: I'll withdraw the
3 amendment at this time and I'll work on the issue with a
4 number of other members.
5 COMMISSIONER THOMPSON: All right. Show the
6 amendment withdrawn --
7 COMMISSIONER BUTTERWORTH: Let me ask one question if
8 I can, Mr. Chairman. Is there any amendatory process
9 after we have public hearings? I would assume there would
10 be because there is no reason to have public hearings if
11 there's no amendatory process.
12 COMMISSIONER THOMPSON: Yes. What we do on the 17th
13 is we come back and by simple majority you can amend any
14 measure that is before us.
15 COMMISSIONER BUTTERWORTH: Okay.
16 COMMISSIONER THOMPSON: Show that withdrawn. And now
17 we are back on the main proposal by Commissioner Connor
18 and we are setting the debate for five minutes per side.
19 Who wants to be recognized as proponents? Commissioner
20 Connor, of course. Anybody else? Commissioner -- you
21 have a question for Commissioner Connor? Okay, let's hold
22 that just a minute.
23 Anybody else want to be recognized as an opponent?
24 Hearing none, Commissioner Connor, why don't you close and
25 in doing so would you yield to a question by Commissioner
2 COMMISSIONER CONNOR: Certainly.
3 COMMISSIONER THOMPSON: He yields.
4 COMMISSIONER BARTON: The question that I have
5 actually deals with the content of the proposal itself.
6 Will that read as it's written here when it's on the
7 ballot? Because I had trouble recognizing it today, after
8 having even sat through the Declaration of Rights'
9 discussion in committee. And I am a little concerned
10 about the way it reads because I don't think people are
11 going to know what they are voting for.
12 COMMISSIONER CONNOR: Well it would read in this
13 manner. I think, on the ballot, if I'm not mistaken,
14 these proposals are set forth by title, and with a
15 summary, I believe, if I'm correct. And so, frankly, the
16 ballot language will not be the language here.
17 And I would submit to you that it's very easy for
18 people to understand that by virtue of this proposed
19 amendment that they will receive a greater measure of
20 protection for their religious practices than is presently
21 otherwise available to them under our current Constitution
22 and laws of the United States.
23 COMMISSIONER THOMPSON: Okay. Have you closed?
24 COMMISSIONER CONNOR: Yes, sir.
25 COMMISSIONER THOMPSON: Okay. Now, we are on final
1 adoption or the latest final adoption of Proposal 187.
2 The Secretary will unlock the machine and the members will
3 proceed to vote. All members voting. All members voting.
4 (Vote taken and recorded electronically.)
5 COMMISSIONER THOMPSON: All members voted. The Clerk
6 will lock the machine and announce the vote. The vote is
7 18 to 7 and so the proposal goes forward.
8 Commissioner Nabors, for what purpose?
9 COMMISSIONER NABORS: I know you are temporarily in
10 charge, but can we get a search party up to see if we have
11 lost the ten-minute rule?
12 COMMISSIONER THOMPSON: Here is the Chairman to
14 (Chairman Douglass resumes the Chair.)
15 CHAIRMAN DOUGLASS: I don't know what you said, but
16 whatever the answer is is what it is.
17 I want to say something though, since I've heard a
18 lot of questions about this. We are going to have three
19 public hearings. We are going to have one public hearing,
20 as you know, in Broward County and one in St. Petersburg.
21 At each public hearing one half of the proposals will be
22 assigned to one spot, one half to the other spot. People
23 will be allowed to address the -- each of the proposals at
24 the public hearing, and time limits will be assigned to
25 each proposal so that the public will have an opportunity
1 to be heard.
2 Some people have written and asked to appear. They
3 will fall into the same category as those who show up to
4 appear and the time will have to be divided by the people
5 who want to speak. And we will figure out when we get
6 there the time.
7 We have several problems with this. Number one, I've
8 been told that some of you cannot attend both public
9 hearings, some of you cannot attend either of the public
10 hearings. The public hearing that's going to be held in
11 Tallahassee is going to be on public television, and it
12 will be participated in in the studio by eight members of
13 the commission. And it will cover any subjects that are
14 brought up by the public at that hearing.
15 Now I hope that clarifies that we are not trying to
16 say who can say what, what we are trying to do is to have
17 an orderly hearing where we will get input on these
18 proposals that we are going forward with. All right. I
19 hope that clarifies that where everybody is concerned.
20 Commissioner Scott.
21 COMMISSIONER SCOTT: Mr. Chairman, if I understood
22 you, you are going to pick half of these proposals to be
23 in South Florida and half of it in Tampa. And I would
24 strongly urge you that in the case, particularly, of the
25 controversial proposals, that there be opportunity for
1 people to speak in both places on them, such as, for
2 example, perhaps the Cabinet, perhaps others. And I
3 have --
4 CHAIRMAN DOUGLASS: I have no objection to this,
5 Commissioner Scott. And I will schedule all of them for
6 both places if that's the will of the commission. But I
7 can guarantee you that we are only going to be able to go
8 from about 9:00 in the morning until about 5:00 in the
10 And with the number of proposals we have -- I'll be
11 glad to do that, I don't want to select the ones that are
12 important and the ones that aren't important because that
13 would be making a prejudgment as to what we should hear
14 from. I am not trying to regulate, nor is anybody on this
15 commission, trying to dictate who and what will appear
16 before us on these hearings. We want to get genuine input
17 from people who have legitimate concerns and suggestions
18 and whatever and support for proposals.
19 Now I will alter that at the will of the commission.
20 If you will take it up with the Rules Committee, I was
21 going to do what the Rules Committee ultimately wanted me
22 to do anyway. As Chairman, that's what I intended to do.
23 And if that's what you-all come up with, I'll do it. If
24 you come up with something else, we'll do it. I suggest
25 you meet with the Rules Committee following today's
1 session, and tomorrow morning we'll have a recommendation
2 and we'll adopt it.
3 COMMISSIONER SCOTT: Mr. Chairman, may I --
4 CHAIRMAN DOUGLASS: Commissioner Scott.
5 COMMISSIONER SCOTT: -- Mr. Chairman, I want you to
6 understand something. I saw some article and I thought
7 that article was very unfair. When you talk about in the
8 public hearings that we have always participated in, you
9 talk about some control is that you expect that if there
10 are 300 people there that want to talk about an
11 environmental issue, or 300 people that want to talk about
12 the Cabinet or whatever, that there would be a designated
13 number and that would be the control. But I just wanted
14 to be sure --
15 CHAIRMAN DOUGLASS: I think my comment may have
16 created the unfairness in the article. I don't want to
17 deny saying anything they said I said. I said some other
18 things, too, that they didn't say, but -- thank goodness
19 in some respects. But by the same token, my use of the
20 word "control" was misinterpreted. I don't mean to
21 control the thing in the sense of what people think. I
22 guess today we have to be a lot more careful with the
23 words we use in a political sense.
24 And it's not going to be controlled in that sense,
25 and I appreciate your bringing that forward, Commissioner
1 Scott. Commissioner Sundberg.
2 COMMISSIONER SUNDBERG: Mr. Chairman, so that I will
3 understand, as to the members that do not participate, you
4 say, you have selected eight.
5 CHAIRMAN DOUGLASS: I didn't select eight. Let's get
6 on this with the Rules Committee, it hasn't reported yet.
7 The Rules Committee is going to make the selection of the
8 eight. There's only room for eight in the studio.
9 COMMISSIONER SUNDBERG: There was nothing intended by
10 it --
11 CHAIRMAN DOUGLASS: I understand that, but it's not
12 the time to bring this up as to who and what.
13 COMMISSIONER SUNDBERG: I thought you had brought it
15 CHAIRMAN DOUGLASS: I only brought it up to tell you
16 what the plan was and that if you wanted to make any
17 further suggestions the Rules Committee is going to meet
18 after this session. I don't want to get into it fully on
19 the floor until the Rules Committee has considered it.
20 And I don't want to make any more statements that are
21 going to come out as badly as the last ones I made.
22 And I love you, Commissioner Sundberg, I would love
23 to hear you talk, but we need to move on.
24 (Off-the-record comment.)
25 CHAIRMAN DOUGLASS: From time to time, from time to
1 time. No, I think we have -- you know, I think, in fact,
2 Commissioner Morsani is the only used car mechanic that I
3 know that's given multimillion dollars for arts in the way
4 of a contribution and I'm very proud of him.
5 So, let's move on to Proposal No. 24. Well, we will
6 read it first.
7 READING CLERK: Proposal No. 24, a proposal to revise
8 Article IV, Section 8, Florida Constitution; requiring
9 that a state prisoner serve at least 85 percent of his or
10 her term of imprisonment, unless granted pardon or
11 clemency; prohibiting the reduction of a prisoner's
12 sentence by more than 15 percent; requiring that a state
13 prisoner sentenced to life imprisonment may be
14 incarcerated for the remainder of his or her natural life,
15 unless granted pardon or clemency.
16 CHAIRMAN DOUGLASS: All right. Commissioner Mills.
17 COMMISSIONER MILLS: Mr. Chairman, I would ask you to
18 recognize Commissioner Barnett in a second, but in
19 response to Commissioner Nabors' question on the
20 ten-minute rule, the way we have been applying the
21 ten-minute rule is if there are amendments that are new
22 items, they don't count toward the ten minutes. And
23 that's what you saw happen last time. As soon as the bill
24 is amended into final form, then we implement --
25 CHAIRMAN DOUGLASS: The Chair is relying on them to
1 advise me on the time.
2 COMMISSIONER MILLS: To the best of our ability.
3 CHAIRMAN DOUGLASS: Commissioner Barnett.
4 COMMISSIONER BARNETT: Thank you, Mr. Chairman. We
5 are now moving to the section of the agenda that deals
6 with what we have entitled crime and punishment. And
7 there are two proposals in this particular category,
8 Proposal 24 and Proposal 127, both by Commissioner Rundle.
9 Proposal 24 is the one that goes by the STOP, which
10 is to Stop Turning Out Prisoners and deals with the
11 85 percent of the -- requiring prisoners to serve
12 85 percent of their sentences. Do you want to read the --
13 CHAIRMAN DOUGLASS: All right. Now, there's an
14 amendment on the table by Commissioner Barnett. We have
15 read the proposal.
16 COMMISSIONER BARNETT: You haven't read the proposal,
17 have you?
18 CHAIRMAN DOUGLASS: Read the proposal again.
19 READING CLERK: Proposal No. 24, a proposal to revise
20 Article IV, Section 8, of the Florida Constitution;
21 requiring that a state prisoner serve at least 85 percent
22 of his or her term of imprisonment, unless granted pardon
23 or clemency; prohibiting the reduction of a prisoner's
24 sentence by more than 15 percent; requiring that a state
25 prisoner sentenced to life imprisonment be incarcerated
1 for the remainder of his or her natural life, unless
2 granted pardon or clemency.
3 CHAIRMAN DOUGLASS: All right. And there's an
4 amendment on the table by Commissioner Barnett.
5 COMMISSIONER BARNETT: I think the amendment on the
6 table may be one by Style and Drafting but it would have
7 my name on it. The Style and Drafting Committee
8 considered the need for an amendment.
9 CHAIRMAN DOUGLASS: Could I have her read it? Read
10 the amendment, please.
11 READING CLERK: By the Committee on Style and
12 Drafting, on Page 2, delete Lines 9 through 20 and insert,
13 "No defendant sentenced to state prison shall be released
14 prior to serving 85 percent of the sentence imposed,
15 unless granted clemency. State prisoners who are
16 sentenced to life imprisonment shall be incarcerated for
17 the rest of their natural life, unless granted clemency."
18 CHAIRMAN DOUGLASS: Does everybody have that?
19 COMMISSIONER BARNETT: I don't know if it's on the
20 desk, but let me take a moment to explain it,
21 Mr. Chairman, it may alleviate the need to -- is it in the
22 book? Okay.
23 Style and Drafting recommended the amendment that you
24 have before you, which essentially takes out the first two
25 sentences of the proposal, as we felt unnecessary, more
1 editorial comment. When we discussed that with the
2 sponsor of the proposer, Commissioner Rundle felt very
3 strongly that that language needed to be in this proposal.
4 And so consistent with our desire not to make any
5 changes that the sponsor feels have some substantive
6 impact as opposed to simply a Style and Drafting type
7 impact, we are going to withdraw that particular
8 amendment. If any particular commissioner wants to offer
9 it, it's certainly available to be offered. But from this
10 committee we would not offer this amendment and we would
11 withdraw it.
12 And Commissioner Rundle would be recognized on the
14 COMMISIONER RUNDLE: Thank you, Mr. Chairman. I'm
15 only one of the three sponsors, but I will be brief and
16 allow time for both of the other sponsors.
17 Just to refresh your memory, Commissioners, this
18 arose out of the citizens' initiative where a number of
19 citizens had been victims of crimes or whose relatives had
20 been victims of crimes, and they were particularly
21 frustrated with the early release crisis that we were
22 having in the late '80s and '90s in our prison system.
23 So they started this initiative drive, and you will
24 see it's in your packet. They actually received, I am
25 told, over half a million signatures to get it on the
1 ballot, but it had some procedural problems in the Supreme
2 Court and they had to start over again. And essentially
3 the goal of this proposal is to try to stabilize one of
4 the very many moving parts of the sentencing process.
5 And by that I mean that when you look at the whole
6 sentencing process, you have the Legislature that sets the
7 penalties and the sentencing guidelines. And then you
8 have the courts who have the discretion to sentence within
9 those guidelines or based on certain reasons they can go
10 up or below those guidelines, and the court should have
11 that discretion.
12 But what happened was, despite what the courts would
13 say after due deliberation and after arguments, an
14 individual would end up going -- Mr. Chairman, I know it's
15 getting late in the day, but I sort of sense that we are
16 not paying full attention. Thank you.
17 CHAIRMAN DOUGLASS: It sounds like the New York Stock
18 Exchange. Now --
19 COMMISIONER RUNDLE: What would happen is a person
20 would get a sentence of say five years, and then would be
21 released based on whatever the capacity of the prison
22 system was. So what you have really is the back end of
23 the system driving the rest of the sentencing process.
24 I can tell you, I think we discussed this in debate
25 last time, you talk to judges, prosecutors, defense
1 attorneys, defendants themselves, there's not an
2 expectation, there's no certainty and truth really in
3 whatever the judge imposes as the sentence, because it's
4 driven by the capacity of our prison system.
5 So this really was designed to make that last part of
6 that whole process certain so that when a court makes its
7 determination, when prosecutors file its charges, when
8 defense attorneys are counseling their clients, that we
9 know that no matter what the sentence is, no matter how
10 many times the Legislature may change the penalties,
11 change sentencing guidelines, no matter what the court may
12 determine, that in the end, what that court says is going
13 to be the sentence. And that essentially is what this
14 proposal does.
15 I would just quickly like to address probably two
16 questions. One is cost. The issue came up at the
17 committee level about whether or not this tied the
18 Legislature's hands. And I think that that is a very
19 important question that we need to answer. And really
20 Commissioner Mills gave us that answer.
21 And he said, no, because you always have the
22 Legislature that designs the penalties, the sentencing
23 guidelines. And you have got a list in there to see how
24 many times sentencing guidelines has been changed since
25 they were instituted in 1984; 21 times. So they always
1 have that ability to do that, if you ever ran into any
2 kind of fiscal crisis within the prison system.
3 I don't know if Commissioner Mills or Commissioner
4 Butterworth want to add anything or open to questions at
5 this point. How would you gentlemen --
6 CHAIRMAN DOUGLASS: At this point, if there's an
7 opponent or questions, we'll have it.
8 COMMISIONER RUNDLE: Okay.
9 CHAIRMAN DOUGLASS: Is there an opponent? Questions
10 first. Commissioner Langley has a question.
11 COMMISSIONER LANGLEY: Commissioner Rundle, what
12 happens when, for some reason, riots or what have you,
13 that we have a total saturated population in the prison,
14 what happens to the next defendant that's sentenced and
15 there's no cell?
16 COMMISIONER RUNDLE: I think one of the advantages,
17 actually, of having this proposal pass would be because
18 you provide the Legislature with fiscal planning so they
19 can look down the road and instead of fragmenting it from
20 year to year depending on how many are coming and going
21 and what capacity they have and how they have to make
22 releases on a very, really unplanned, un-thought-out
23 process, this actually provides them the ability, based on
24 sentencing, to project what kind of capacity they are
25 going to need. So really this helps in fiscal planning.
1 COMMISSIONER LANGLEY: If you had a crystal ball, I
2 would agree. But do you realize I was on Criminal Justice
3 in 1980, '82 and we projected a topping out of the prison
4 population in this state at about 46,000. And then came
5 the great invention, crack cocaine. And it is now, what,
6 close to a hundred. We never anticipated such a thing.
7 You can't plan that far.
8 I'm talking about what happens -- somehow you have
9 got to have an emergency escape valve, something to
10 relieve, or else where are you going to put them?
11 CHAIRMAN DOUGLASS: Does Commissioner Butterworth,
12 want to answer that?
13 COMMISSIONER BUTTERWORTH: Yes, Mr. Chairman.
14 Commissioner Langley, I think one of the most important
15 features of this, it requires the clemency board to do its
16 job, which right now, we basically do not do any work at
18 So what would happen is that right now, if we are
19 overcrowded, somebody down the line makes the decision to
20 let somebody out early. I would anticipate that if we
21 become overcrowded, what would happen now is that the
22 Cabinet sitting as the clemency board would have staff
23 review the inmates, determine which inmates should be
24 released early in order to relieve the overcrowding.
25 So we would be doing, if we have to do release in the
1 future, we would be doing it in the smart way; whereas,
2 unfortunately in the past, we did it in a very un-smart
3 way and it ended up, I think, increasing our crime rate
4 dramatically in this state. As we see ourselves now going
5 to the 70 and 75 percent incarceration, we are seeing the
6 crime rate going down. So I think the escape valve would
7 be there, but it would require the Governor and the board
8 to actually do their job.
9 CHAIRMAN DOUGLASS: All right, an opponent,
10 Commissioner Smith. Another question? All right,
11 Commissioner Langley.
12 COMMISSIONER LANGLEY: The question used when you
13 oppose anything here, is there any reason that the
14 Legislature can't do this?
15 COMMISSIONER BUTTERWORTH: The Legislature has
16 increased, in fact, under then-President Scott's regime,
17 that was done.
18 COMMISSIONER LANGLEY: And the question is, since
19 they have the financial responsibility to do what we want
20 to do, shouldn't it be their decision to also do the
21 provision? And secondly, do you know of anyone running
22 for office nowadays who says they are going to decrease
24 COMMISSIONER BUTTERWORTH: I believe this is
25 important for this to be in the Constitution so this will
1 not -- so what we had in the past will not occur again.
2 CHAIRMAN DOUGLASS: That's all right. You will get a
3 chance to close. Commissioner Smith is an opponent.
4 COMMISSIONER SMITH: Thank you, Mr. Chairman. I ask
5 for your undivided attention with regard to this proposal
6 because this is a very sweet-tasting poison. We have
7 criticized the Legislature, sometimes rightly and
8 sometimes wrongly.
9 This is an opportunity I think that we need to
10 commend the Legislature because this was a major problem
11 that we had with prisoners. And I had clients of mine who
12 were begging me, Please don't let them send me to the
13 county jail, let them send me to prison. Because if I get
14 a six or seven-year prison sentence, I can be out faster
15 than if I went to the county jail. And it was absolutely
17 And although I was a criminal defense lawyer, I am a
18 member of the public, too. And believe me, they don't put
19 signs on criminal defense lawyers' houses, We won't break
20 in your house. We won't rob you. It's equal employment.
21 There's equal opportunity when it comes to crime.
22 So let me publicly thank Senator Scott and those in
23 the Legislature for responding to this problem. And they
24 responded promptly and they responded effectively. As we
25 sit here now, the law in the state of Florida is you do
1 85 percent of the time. You do the crime, you do
2 85 percent of your time. And that's one thing that we
3 have had our Legislature responding to, and that is crime,
4 because it is a big problem.
5 Now, with regard to that, just briefly, with regard
6 to that, if we go down this slope, what's going to take
7 crime victims from saying, Okay, we are going to put in
8 the Legislature, rape, you must do life; if it's crack,
9 you must do 15 years. We don't want to take this out of
10 the legislators' hands and we don't want to put ourselves
11 in the position where we tie the hands of the Legislature.
12 I've been a lawyer 24 years. Not one sentence for
13 crime has been reduced, where they said, instead of ten
14 years, now the time is five years; instead of five years,
15 it's one year. That's not going to happen. And I think
16 we should vote against this, not because it's a bad idea,
17 it is a great idea, but because it's already the law and
18 we should not open up the floodgates for the Constitution
19 to have the next constitutional amendment, anybody that
20 rapes a child, you have got to do every day of life;
21 anybody that sells crack cocaine, you do every day of 15
22 years. Because those things will pass, but it's not right
23 for the Constitution.
24 CHAIRMAN DOUGLASS: All right. Commissioner Rundle
25 would like to close. Commissioner Scott, are you an
1 opponent? Proponent, Commissioner Scott. Two, you have
2 two minutes.
3 COMMISSIONER SCOTT: Why in the Constitution? In the
4 early part of the '90s, the state quit building prisons.
5 And as a result of that, these prisoners were serving like
6 35 percent of their time. Now, heaven forbid that we
7 should have executive or legislative leadership that would
8 ever let that happen again, without naming names.
9 But it should be in the Constitution because this is
10 what people want. I agree with what Commissioner Smith
11 says, we are not going to backtrack on it. And if we run
12 into problems, we'll figure out some way to build prisons,
13 but I really believe it should be in the Constitution, I
14 think the people want to see it there.
15 I don't want to take a chance that somebody gets
16 elected in the future that might backtrack on this or
17 might not hold up to it or say, Gee, we don't have the
18 money for prisons, so let's reduce it to 50 percent or
19 let's eliminate it and then we'll let the judges worry
20 about it and whatever and whatever. So I would like to
21 have it in the Constitution. And I think it's as
22 important or more important than a lot of the stuff that
23 we have pushed forward at least to go to the public
25 CHAIRMAN DOUGLASS: Commissioner Rundle to close, you
1 have one minute.
2 COMMISIONER RUNDLE: Just very briefly, to respond to
3 Commissioner Smith and piggyback on what Commissioner
4 Scott was saying.
5 I think the best evidence to me as to why it needed
6 to be in the Constitution was the Legislature itself
7 telling us that. I think you all may recall that
8 Commissioner Scott said that the Senate unanimously
9 passed, or voted rather, to put this on the ballot, to get
10 it in the Constitution, but then it failed in the House
11 because somebody amended the 85 percent to be 100 percent.
12 So when the Legislature itself says, You know, maybe
13 we need to protect this provision from ourselves, I take
14 that as a very compelling reason why it needs to be there.
15 The other thing is you have got the citizens who would
16 like it there. They are asking you to please put it
17 there. They have worked very hard on this for several
18 years and I believe, quite frankly, they will continue to
19 do that.
20 And last but not least, Commissioner Smith,
21 sentencing will always remain with the Legislature and
22 with the courts. All this says is that whatever that
23 sentence is, we all know what that person is going to
25 CHAIRMAN DOUGLASS: All right. Commissioner Mills.
1 COMMISSIONER MILLS: Mr. Chairman, ladies and
2 gentlemen, let me tell you exactly what the Legislature
3 will do, because I was there. The Legislature, without a
4 constitutional amendment can change the law, that's what
5 the Legislature does.
6 What the Legislature did, and I remember in '80 and
7 '82, we said, Well, anybody that's served over this amount
8 of time, let them out. Commissioner Butterworth gave you
9 the best argument. You will absolutely be able to choose
10 who you let out, if you have got to. We won't let people
11 out randomly. What happened? We were letting out
12 unbelievably strange people. You can't do this if you
13 have a constitutional amendment that says 85 percent.
14 It will make the Legislature be more honest, it will
15 make the prosecutors be more honest, it will make the
16 courts be more honest. If you absolutely know that you
17 are going to be serving 85 percent of the sentence, all of
18 those groups have to be more honest because at least you
19 have stopped this terribly complicated process that had
20 one unmoving part. And more important, the public that
21 cares about this more than almost anything else will have
22 some surety that their criminal justice system is honest.
23 CHAIRMAN DOUGLASS: All right. Open the machine and
24 let's vote, please.
25 (Vote taken and recorded electronically.)
1 CHAIRMAN DOUGLASS: Lock the machine and announce the
3 READING CLERK: Seventeen yeas, 14 nays,
4 Mr. Chairman.
5 CHAIRMAN DOUGLASS: By your vote you have moved this
6 forward. Commissioner Connor, you asked to be recognized
7 after that vote, I understand; am I right?
8 COMMISSIONER CONNOR: I'm not sure, frankly.
9 CHAIRMAN DOUGLASS: Well, if you are not, I
10 understood, somebody told me, maybe it was Commissioner
11 Zack, that you were going to move to reconsider No. 58
12 before somebody left this afternoon.
13 COMMISSIONER CONNOR: Actually I did move to
14 reconsider 59 as amended already.
15 CHAIRMAN DOUGLASS: All right. But you wanted to
16 bring it up for reconsideration, is my understanding. Is
17 that correct?
18 COMMISSIONER CONNOR: Yes, sir, I do wish to do that.
19 CHAIRMAN DOUGLASS: All right. Ladies and gentlemen,
20 Commissioners, Commissioner Connor has previously moved to
21 reconsider Proposal No. 59, which was a sovereign immunity
23 COMMISSIONER CONNOR: Yes, sir.
24 CHAIRMAN DOUGLASS: And because of some commissioners
25 asking for it to be brought up early today because they
1 had to catch a plane this afternoon, having been excused
2 for tomorrow, the one that I know of, you are bringing it
3 up so that it can be voted on whether to reconsider it
4 today; is that right?
5 COMMISSIONER CONNOR: Yes, Mr. Chairman. I would
6 like to advocate reconsideration, if I may. I have really
7 struggled with the philosophical issue as to whether or
8 not the proposals that were put forth ought to be in the
9 Constitution. I felt that of all of the proposals that
10 were put forth, Commissioner Lowndes' was closest to
11 satisfying the philosophical objections that I had to it.
12 And I understand that Commissioner Wetherington,
13 ultimately, has some additional language that may satisfy
14 that altogether.
15 I believe that we ought to reconsider it so that we
16 may array the public policy issues at stake, which have to
17 do with unrecompensed injury and the lack of
18 accountability on the part of government, and balance that
19 over against our responsibility to be faithful to our
20 constitutional duties. I am increasingly persuaded that
21 we may well be able to be faithful to our constitutional
22 duties and do justice on this issue at the same time. And
23 I'm certainly open to reconsidering my former position,
24 which has been in opposition to the proposal.
25 CHAIRMAN DOUGLASS: Okay. So what you are asking is
1 to vote to reconsider it, and then not necessarily
2 reconsider it today, but reconsider it tomorrow.
3 COMMISSIONER CONNOR: I'm open to --
4 CHAIRMAN DOUGLASS: You want to reconsider it today.
5 That takes a waiver of the rules, I'm told by the Clerk.
6 And I assume that nobody objects to doing that. If so,
7 without objection. If we are going to do it without
8 objection, let's move forward and not get tangled up.
9 COMMISSIONER BARKDULL: Wait a minute, wait a minute.
10 Mr. Chairman?
11 CHAIRMAN DOUGLASS: Commissioner Barkdull.
12 COMMISSIONER BARKDULL: Let's vote on the motion to
13 reconsider and then determine whether we're going to waive
14 the rules and take it up because the motion to reconsider
15 may not pass.
16 CHAIRMAN DOUGLASS: To take up the motion to
17 reconsider today is a waiver of the rules, according to
18 the Secretary, and I rule that. So I'm asking for a
19 waiver of the rules to take up the motion to reconsider
20 today. Now -- and if there's no objection, Commissioner
21 Connor, we will entertain your motion to reconsider and we
22 will vote on whether or not to reconsider. That is
23 subject to debate on the floor on the motion to reconsider
25 And I realize there's been an amendment put on your
1 desk, but that's not available unless you vote to
2 reconsider. Commissioner Lowndes.
3 COMMISSIONER LOWNDES: I would like to urge the
4 commission to reconsider this matter. I think to some
5 degree the matter failed because of inept drafting on my
6 part. I went to the person who was educated at one of the
7 finest law schools in the United States, Judge
8 Wetherington, to help me out. And I think we have a
9 clearer matter before the House. So I would like to have
10 a chance to reconsider.
11 CHAIRMAN DOUGLASS: We are on the motion to
12 reconsider. If you want to reconsider, you will vote yes.
13 Commissioner Thompson.
14 COMMISSIONER THOMPSON: Inquiry of the Chair.
15 CHAIRMAN DOUGLASS: Yes.
16 COMMISSIONER THOMPSON: What vote does this motion
17 require, a simple majority or --
18 CHAIRMAN DOUGLASS: Yes, simple majority.
19 COMMISSIONER THOMPSON: How did we get past the
20 motion to waive the rules?
21 CHAIRMAN DOUGLASS: I said without objection the
22 rules are waived. And nobody objected.
23 COMMISSIONER THOMPSON: I was trying to get your
24 attention. I wanted to vote on that motion.
25 CHAIRMAN DOUGLASS: Do you object?
1 COMMISSIONER THOMPSON: Sure, I object. I'm against
2 the measure. So if you're against the measure, you would
3 want to vote against the motion to waive the rules and put
4 it off until tomorrow and see if you can get support for
5 your side, just like they are trying to get support for
6 theirs right now, Mr. Chairman.
7 CHAIRMAN DOUGLASS: Okay. It suits me. There's been
8 a motion made which I declared having passed without
9 objection, and it was because I didn't hear any objection.
10 Now I heard one. Commissioner Langley, do you agree that
11 we should take the vote on the motion?
12 COMMISSIONER LANGLEY: No, sir, I think on a point of
13 order that you had already ruled, that that is
14 irreversible at this time. You ruled without objection.
15 I think we are on the motion.
16 CHAIRMAN DOUGLASS: Okay. The Chair rules that we
17 are going to go forward and vote on the motion to
18 reconsider, as we announced, and there's been a waiver of
19 the rule without objection. And that is the ruling of the
21 Now, to vote to reconsider, you vote yes; to vote not
22 to reconsider, you vote no. And to not vote, you don't.
23 Okay. Open the machine and let's vote.
24 (Vote taken and recorded electronically.)
25 CHAIRMAN DOUGLASS: Announce the vote.
1 READING CLERK: Twenty-one yeas, 9 nays,
2 Mr. Chairman.
3 (Off-the-record discussion.)
4 CHAIRMAN DOUGLASS: All right. You voted to
5 reconsider. Okay. We are on reconsideration. The floor
6 is now open and Commissioner Lowndes has asked to be
7 recognized. Commissioner Barkdull.
8 COMMISSIONER BARKDULL: The motion to reconsider has
10 CHAIRMAN DOUGLASS: That's correct.
11 COMMISSIONER BARKDULL: In the normal order of
12 business, this would recur tomorrow morning when you get
13 to that order of business. Now if you want to take this
14 item up out of order, it seems to me that you need some
15 additional motions.
16 CHAIRMAN DOUGLASS: No, that's not correct. The
17 Chair rules that we are going forward on this now, on the
18 advice of the Secretary. We waived the rules to take up
19 the motion today and we go forward on that basis.
20 Commissioner Lowndes, you are recognized.
21 COMMISSIONER LOWNDES: Mr. Chairman, in the case of
22 sovereign immunity, I think that there are two problems
23 that have been identified. And one problem was the caps,
24 the low caps and the reluctance of the Legislature to
25 raise the caps. And the second problem was the
1 awkwardness and unfairness of the claims bill procedure.
2 I would like, first, to move the amendment which is on the
4 CHAIRMAN DOUGLASS: All right. First of all, we'll
5 read the proposal title.
6 READING CLERK: Proposal 59, a proposal to revise
7 Article X, Section 13, of the Florida Constitution;
8 providing limitations upon the amount of damages payable
9 by a state when a court finds a state liable; providing
10 for a bad-faith surcharge; placing a limit on attorneys'
12 CHAIRMAN DOUGLASS: Now the -- there's an amendment
13 on the table. Would you read the amendment by
14 Commissioner Lowndes?
15 READING CLERK: By Commissioner Lowndes, delete
16 everything after the proposing clause and insert lengthy
18 CHAIRMAN DOUGLASS: Okay. Commissioner Lowndes,
19 would you explain your amendment, which in effect, is a
20 new proposal?
21 COMMISSIONER LOWNDES: Yes, sir. The amendment
22 provides a procedure which somebody could, a claimant in a
23 tort action, in a suit which the Legislature has permitted
24 to be brought against the state, a claimant met tort
25 action who seeks to recover more damages than the existing
1 cap. The claimant has a choice, it can elect to go to
2 arbitration and collect more than the existing cap up to
3 an amount of $500,000, unless that amount is increased by
4 general law.
5 Hopefully, what this will do is, in certain cases, it
6 will allow claimants to be compensated for their damages
7 in excess of the cap without having to go to the claims
8 bill procedure. Hopefully it will relieve the Legislature
9 of a lot of the claims bill procedures because people
10 won't be coming here and asking for them. And hopefully,
11 also, it provides a method to, in some instances, for
12 people to recover in excess of the cap, which hopefully
13 cured the two problems we were dealing with.
14 It is a much simpler proposition. I think it points
15 out that you are not giving up your right to a jury trial.
16 You have the same right to a jury trial that you had
17 today. You can elect not to have a jury trial and if you
18 elect not to have a jury trial, then you have the
19 opportunity, through an arbitration proceeding, of
20 recovering damages up to $500,000. It leaves the --
21 unlike the amendment yesterday it leaves the arbitration
22 procedure to the Legislature.
23 CHAIRMAN DOUGLASS: All right. Commissioner
25 COMMISSIONER SUNDBERG: Question, please,
1 Mr. Chairman. Mr. Lowndes, let's assume one proceeds
2 through this process and gets an arbitration award of a
3 million dollars, will that person be precluded from then
4 going to the Legislature for the amount by which the award
5 exceeds the 500,000, on a claims bill?
6 COMMISSIONER LOWNDES: No, I think it was pointed out
7 yesterday that the ability to grant claims bills is solely
8 in the hands of the Legislature. The Legislature can
9 decide not to honor a claims bill under those
10 circumstances, or not to honor a claims bill under the
11 circumstances where people got arbitration awards, but
12 that would be up to the Legislature. This doesn't attempt
13 to change that.
14 COMMISSIONER SUNDBERG: But nobody waives the right
15 to seek a claims bill before the Legislature by virtue of
16 pursuing this procedure?
17 COMMISSIONER LOWNDES: No, sir.
18 CHAIRMAN DOUGLASS: Commissioner Smith.
19 COMMISSIONER SMITH: A question, and hopefully a
20 friendly question. This provision states when a tort suit
21 claims, and the operative words being "tort suit," as
22 opposed to a claimant.
23 So that you can have, let's just say -- I ask this
24 question because I had this situation where a father died
25 and left an adult child and a minor child. The adult
1 child's claim we valued at about $75,000, the minor
2 child's claim we valued at about 1.7 million. In that
3 case, that is a tort suit. So does both the surviving
4 adult child as well as the surviving minor child have a
5 right to participate in this arbitration procedure, or
6 must you bifurcate it and just have the survivor whose
7 claim is in excess of the limited sovereign immunity?
8 COMMISSIONER LOWNDES: Well, I'm not sure that I can
9 answer that exactly. I would like to defer that question
10 to Commissioner Wetherington.
11 COMMISSIONER SMITH: I'm not trying to throw a monkey
12 wrench in anything, I think we just need to know that to
13 clarify things.
14 COMMISSIONER WETHERINGTON: It would be the same way
15 now. If you go down and file a wrongful death suit, it's
16 one suit. Now you may have a wrongful death suit and
17 statutory beneficiaries, but it's handled in the same
18 suit. If you go to arbitration in a wrongful death case,
19 you are in arbitration for all of the claims. If you go
20 into the circuit court, you are in circuit court for all
21 of the claims.
22 COMMISSIONER SMITH: So that as it is now, the
23 personal representative brings a claim on behalf of all of
24 the survivors, and the suit stays together.
25 COMMISSIONER WETHERINGTON: That's right.
1 COMMISSIONER SMITH: Okay. I wanted to make sure.
2 COMMISSIONER WETHERINGTON: Yes, that's exactly what
3 it is. It doesn't change anything, except you either go
4 into circuit court and get your judgment; if you get over
5 100,000 you do your claims bill, or if you are claiming
6 over $100,000 you can go into arbitration.
7 COMMISSIONER SMITH: Well the next logical question,
8 Mr. Chair, if I may, is a bus is hit, some people are
9 seriously injured, some people are not. I, as a lawyer,
10 now have two of those individuals; one claiming in excess,
11 one claiming lower than the sovereign immunity limit.
12 What happens in that situation, Commissioner Wetherington?
13 That's one tort suit I'm trying to file.
14 COMMISSIONER WETHERINGTON: You are filing two tort
15 suits in one. For purpose of convenience, we allow you to
16 bring them together. They are two separate claims, they
17 are two separate suits.
18 COMMISSIONER SMITH: Thank you.
19 COMMISSIONER WETHERINGTON: One can go in
20 arbitration, if he wants to, one can go in the circuit
21 court right now. You can do it either way.
22 COMMISSIONER SMITH: Thank you.
23 CHAIRMAN DOUGLASS: All right. Commissioner Brochin.
24 Oh, you didn't. You have a question, Commissioner
1 COMMISSIONER FORD-COATES: Yes, I do.
2 CHAIRMAN DOUGLASS: Who to?
3 COMMISSIONER FORD-COATES: Either Commissioner
4 Lowndes or Commissioner Wetherington, either one. It is a
5 repeat of the question that I've asked before: Do we know
6 what the cost would be to local and state government of
7 this proposal?
8 COMMISSIONER LOWNDES: I think that the answer was
9 the same as it was yesterday, that we don't know.
10 COMMISSIONER FORD-COATES: So we don't know what the
11 impact would be. Could this be accomplished by
12 legislative action?
13 COMMISSIONER LOWNDES: Yes.
14 COMMISSIONER FORD-COATES: Thank you. I would like
15 to speak later in opposition to the proposal.
16 CHAIRMAN DOUGLASS: Go ahead and do it now because
17 it's the opposition's turn.
18 COMMISSIONER FORD-COATES: Commissioners, I have a
19 real concern, as I did yesterday, that this may be a very
20 good idea, but we don't know what the impact is. And
21 although the Legislature now will create the rules on it,
22 I think that the Legislature should take that action on
23 their own and be able to respond to this, because I fear
24 that there will be unforeseen consequences.
25 And I might as well go ahead and invoke Commissioner
1 Anthony's name because everybody else has in his absence,
2 I have serious concerns about the impact of a proposal
3 like this that basically raises sovereign immunity, the
4 cap to 500,000 and the impact on cities such as South Bay.
5 CHAIRMAN DOUGLASS: All right. Anybody else want to
6 be heard? Commissioner Zack?
7 COMMISSIONER ZACK: Very briefly in favor of it, as a
8 surprise. The questions that were asked by Commissioner
9 Ford-Coates, she asked the other day, we are going to have
10 public hearings on this matter. I'm sure that we will
11 have an opportunity to further clarify any questions she
12 may have. I would strongly urge us to go forward on this
13 matter at this time.
14 CHAIRMAN DOUGLASS: Does somebody want to close?
15 Okay, it's been closed. All right. Unlock the machine
16 and let's vote.
17 (Vote taken and recorded electronically.)
18 CHAIRMAN DOUGLASS: Announce the vote.
19 READING CLERK: Nineteen yeas, 11 nays, Mr. Chairman.
20 CHAIRMAN DOUGLASS: Okay. By your vote you have
21 adopted No. 59 as amended.
22 Let's take a five-minute recess and see if we can
23 regroup a little bit. Everybody seems to be a little
24 antsy. All right. We'll be back in business here at
1 (Brief recess.)
2 CHAIRMAN DOUGLASS: Quorum present. Commissioner
3 Langley. Give your attention, Commissioner Langley has
4 the floor.
5 COMMISSIONER LANGLEY: Commissioners, and
6 Mr. Chairman, I'd like to move that we extend the time of
7 adjournment to the completion of the business of the day.
8 And I promise not to say very much at all on anything
9 between now and then.
10 CHAIRMAN DOUGLASS: We're still going to have to meet
12 COMMISSIONER LANGLEY: Why?
13 CHAIRMAN DOUGLASS: Because we have business that has
14 to be taken up tomorrow. For example, I voted on one of
15 these proposals, and I'm sure others did the same thing,
16 on the age proposal I voted with the majority so I could
17 move to reconsider.
18 COMMISSIONER LANGLEY: That doesn't have to be
19 tomorrow, you could do it the next time we meet.
20 CHAIRMAN DOUGLASS: I could move it today and hear it
21 tomorrow. Besides, we're not going to go much past 5:00.
22 The commission has become very, very inattentive and we're
23 not getting the attention to these proposals that we did
24 throughout the proceedings. And I don't think that we
25 should continue this into the night and make a marathon
1 out of it because it's not like -- we criticize the
2 Legislature for running beyond time and everybody is tired
3 and you get things done you don't want to do and you have
4 to come back and undo them.
5 We scheduled all week for this. This is only
6 Wednesday. And subsequently we will clearly be out of
7 here by noon tomorrow.
8 COMMISSIONER LANGLEY: Mr. Chairman, I have a motion
9 on the floor of high priority called a time to adjourn.
10 CHAIRMAN DOUGLASS: There's a motion on the floor to
11 continue the time until everything on the --
12 COMMISSIONER LANGLEY: Special order calendar, ten
14 CHAIRMAN DOUGLASS: -- special order calendar is
15 heard. Does that include matters on reconsideration?
16 COMMISSIONER LANGLEY: No, sir, they're not on the
18 CHAIRMAN DOUGLASS: Commissioner Barkdull.
19 COMMISSIONER BARKDULL: I would have to oppose the
20 motion, Mr. Chairman. I think the Chair has recognized
21 the body is getting a little restless, it's 4:23. I
22 hazard a guess if we were to try to do this we would be
23 here until 7:00 to 8:00 tonight and I don't think it would
24 be good. So I oppose the motion.
25 CHAIRMAN DOUGLASS: Commissioner Henderson.
1 COMMISSIONER HENDERSON: I have a question to the
2 Chair or to the body. I think the issue and the concern
3 is that if you're not in the chambers, you're voting
4 against everything that comes up. And this last vote we
5 were down to 29 members. At the quorum call there were
6 22. If we took -- every vote right now has to be a
7 unanimous vote. So the question is how many people are we
8 going to lose tomorrow is my question to the body.
9 CHAIRMAN DOUGLASS: I think you're wrong. The vote
10 has to be a majority of those present and voting to carry
11 it forward to the next meeting. And at that point, five
12 people can raise their hands and get a rehearing.
13 Right now, those that are under the rules that didn't
14 apply to this can move for rehearing tomorrow on matters
15 that were passed today and they would be automatically
16 reheard at the next meeting. Those that are under the
17 rule that we are operating under where we have to have the
18 majority or the 22 vote to go forward, you can rehear a 22
19 vote matter with five shows of hands. You can rehear a
20 majority vote with five shows of hands.
21 If we get down to where you have 20 members and it's
22 passed by one vote, it's still available for rehearing at
23 the next proceeding. So that's not a correct statement of
24 where we are. The issue of how many is here is not
25 important. The issue is whether or not you get a majority
1 vote in order to stay alive through the public hearing and
2 then to the next meeting.
3 Anybody want to be heard on the motion? If not, all
4 in favor of the motion say aye; opposed?
5 (Verbal vote taken.)
6 CHAIRMAN DOUGLASS: Motion fails. All right, we'll
7 vote. I think I made myself clear. You don't realize how
8 you look out there and the way that you're responding,
9 it's not like you do all the time. Okay. All those --
10 open the machine and let's vote.
11 (Vote taken and recorded electronically.)
12 CHAIRMAN DOUGLASS: Lock the machine.
13 READING CLERK: Twelve yeas, 15 nays, Mr. Chairman.
14 CHAIRMAN DOUGLASS: The motion fails, we'll proceed.
15 The next item for consideration is Proposal 167 by
16 Commissioner Rundle.
17 COMMISSIONER RUNDLE: Commissioner Barnett from Style
18 and Drafting is recognized to represent the proposal.
19 Let's read the proposal, please.
20 READING CLERK: Proposal No. 167, a proposal to
21 revise Article VIII, Section 5, of the Florida
22 Constitution; authorizing each county to require a
23 background check and waiting period in connection with the
24 sale of any firearm; defining the term "sale."
25 CHAIRMAN DOUGLASS: All right. There are three
1 amendments on the table. I recognize Commissioner
2 Barnett, who's speaking for Style and Drafting; is that
4 COMMISSIONER BARNETT: Thank you, Mr. Chairman, I'll
5 be very brief. The Style and Drafting Committee has
6 reviewed Proposal 167. I know all of you probably don't
7 remember what this one is.
9 CHAIRMAN DOUGLASS: It's in your mailbox, and on your
10 fax machine.
11 COMMISSIONER BARNETT: But it's the reason that I
12 can't access my computer anymore, it's the reason that we
13 had to order four new boxes of fax paper at our office.
14 This is the gun, this is the gun control issue. That's
15 not, perhaps not the right way to say it, but this is the
16 issue dealing with the retail sale of firearms.
17 The Style and Drafting Committee does not have any
18 proposed amendments. We do have a request that at the
19 public hearings we get some bulletproof jackets for the
20 members of the commission.
21 CHAIRMAN DOUGLASS: Commissioner Rundle, she's really
22 for your proposal, I can tell.
23 COMMISSIONER BARNETT: I actually am for this
24 proposal, and I turn it over to her.
25 CHAIRMAN DOUGLASS: There are three amendments on the
1 table. Are these your amendments? Whose amendments are
3 (Off-the-record comment.)
4 COMMISSIONER RUNDLE: Commissioner Alfonso filed one
5 first, then Commissioner Langley, then Commissioner
7 CHAIRMAN DOUGLASS: Read Amendment No. 1.
8 READING CLERK: By Commissioner Alfonso, on Page 1,
9 Line 30, after the word "firearm" insert: "When any part
10 of the transaction is conducted on property to which the
11 public has the right of access."
12 CHAIRMAN DOUGLASS: All right. Commissioner -- do
13 you want to make a few opening remarks, Commissioner
14 Rundle, before he presents his amendment, just to remind
15 us what we adopted before?
16 COMMISSIONER RUNDLE: As it is I feel I really
17 overburdened this commission with this particular
18 proposal. But just very briefly I'm not going to insult
19 you with repeating what we discussed, I guess it was just
20 a week ago. We debated this for two hours. This was a
21 loophole closer, this is a give rights back to local
22 communities, to local government to enact background
23 checks, waiting periods on all firearms, not just
24 handguns, for their community.
25 I hope most of you remember the tape that you saw
1 regarding gun shows. I know you're very tired, it's very
2 late in the day. Between the faxes and this issue and the
3 telephones and the computers I'm sure you're up to here
4 with this. But if you could please just bear with us for
5 the next five minutes on this and I hope that -- you gave
6 me great support, you gave the people in urban areas great
7 support on this issue before, I hope you do it again.
8 CHAIRMAN DOUGLASS: Wasn't it amended so that you had
9 a maximum five-day waiting period?
10 COMMISSIONER RUNDLE: Yes, sir. It's exactly the way
11 that it appears in the book. There was an amendment to --
12 excuse me? Commissioner Alfonso added the days, no more
13 than five. And Commissioner Sundberg helped me with the
14 excluding holidays and so on and so forth. So it is now
15 the way it stands.
16 CHAIRMAN DOUGLASS: In the book.
17 COMMISSIONER RUNDLE: Correct.
18 CHAIRMAN DOUGLASS: And Amendment No. 1 by
19 Commissioner Alfonso is now available. Commissioner
20 Alfonso, on your amendment, please.
21 COMMISSIONER ALFONSO: Yes, sir, thank you,
22 Mr. Chairman. The amendment deals with really the
23 specific purpose that we talked about last time, which is
24 these gun shows that we saw, and that's really my intent,
25 and the loophole created by the sale of some pretty
1 substantial firearms or weapons, you know, assault weapons
2 or automatic weapons at these gun shows. So I'm really
3 trying to make this specific to that.
4 And by doing that originally, the idea was we
5 thought -- the idea was with the public sale of any
6 firearm. When we went into actual drafting and analysis,
7 we came up with this language which is the language that
8 you have before you, when any part of the transaction is
9 conducted on property to which the public has the right to
11 So with that, I think it helps local governments, it
12 actually addresses this gun show issue. And now they can
13 still have gun shows, they just need to, you know, live
14 with the requirements of registering the firearms and all
15 that at the gun shows.
16 CHAIRMAN DOUGLASS: All right. On the amendment,
17 Commissioner Sundberg.
18 COMMISSIONER SUNDBERG: For a question. Commissioner
19 Alfonso, we were favored with a videotape that showed
20 conduct that was going on in South Florida where there was
21 a gun show and then there was a Cadillac automobile
22 sitting out in the parking lot and they seemed to be
23 conducting a brisk sale of firearms out of the automobile.
24 Would that be exempt if your language is placed in?
25 COMMISSIONER ALFONSO: This language would not exempt
1 that. It would exempt a private sale. For example, if I
2 received -- it would exempt gifting. I received -- you
3 know, as a wedding present I received a quail gun back
4 when I got married from my father-in-law. And that was a
5 present. And if I chose to sell that to Commissioner
6 Langley or whatever, it would exempt that as a private
7 property sale, but it would not exempt what you are
8 talking about.
9 COMMISSIONER SUNDBERG: But that is not a transaction
10 conducted on property to which the public has the right to
12 COMMISSIONER ALFONSO: That's correct.
13 CHAIRMAN DOUGLASS: I think -- is it clear that what
14 you're saying, I think your question may not have made
15 this exactly clear, but I think -- weren't you trying to
16 ask him if this wouldn't apply to a private sale because
17 it only applies to sales taking place on public -- to
18 which the public has access?
19 COMMISSIONER ALFONSO: What I understood was that
20 video showed that sale taking place in the parking lot of
21 that civic center and that was public access property.
22 That's how I understand that.
23 CHAIRMAN DOUGLASS: So you could have a private
24 access and it would not be covered.
25 COMMISSIONER ALFONSO: That's my understanding.
1 CHAIRMAN DOUGLASS: Okay. Commissioner Smith.
2 COMMISSIONER SMITH: I rise to support the amendment.
3 Either Commissioner Scott and/or Commissioner Langley made
4 very, very compelling arguments that a person should be
5 able to give a firearm, a handgun or whatever, rifle to a
6 relative or if we have a private transaction, the
7 government shouldn't have any business to be involved in
9 And I think that this amendment by Commissioner
10 Alfonso definitely deals with that legitimate concern and
11 strengthens this proposal and narrows it so that it
12 doesn't -- not only does it cover, as a Band-Aid, cover
13 the problem that we have, but it doesn't cover the whole
14 hand. So I support this.
15 CHAIRMAN DOUGLASS: It's only appropriate to point
16 out that Commissioner Langley's amendment, which is on the
17 table, covers this same subject and reads differently. I
18 think it says that Commissioner Langley moves the
19 following amendment. It would be Amendment No. 2 or 3,
20 which is it? Number 3? And he strikes -- he adds instead
21 of the language that this one adds, except private
22 noncommercial sales conducted on private property that is
23 not subject to public access.
24 So they are essentially on the same line. You might
25 want to consider that in doing these amendments.
1 Commissioner Rundle.
2 COMMISSIONER RUNDLE: Thank you, Mr. Chairman. I
3 think I might be able to save us some time because I
4 promised I'd try not to abuse you-all any further on this
5 issue. I accept Commissioner Alfonso's amendment as a
6 friendly amendment. We have discussed it and Commissioner
7 Langley was thinking along the same lines, I think we're
8 all very comfortable with Commissioner Alfonso's, they are
9 essentially the same. I think we can just move this
11 CHAIRMAN DOUGLASS: Commissioner Langley? So you're
12 in favor of the amendment that's on the table; is that
13 correct? All right. Any further discussion on the
14 amendment on the table? If not, all in favor of the
15 amendment say aye; opposed?
16 (Verbal vote taken.)
17 CHAIRMAN DOUGLASS: All right. The amendment is
18 adopted. Now Amendment No. 2. We're not quite to yours
19 yet, we have another one. Commissioner Langley withdraws
20 his amendment and now we move to Amendment No. 2.
21 READING CLERK: By Commissioner Barkdull, on Page 1,
22 Lines 27 and 30, and on Page 2, Line 2, delete the word
23 "firearms" and insert "handgun."
24 CHAIRMAN DOUGLASS: Commissioner Barkdull, you are
25 recognized on Amendment No. 2.
1 COMMISSIONER BARKDULL: As Commissioner Nabors says,
2 please listen up on this one. It's very simple, the
3 proposal we passed the other day covers all firearms,
4 which includes shotguns and rifles. This amendment
5 restricts the relaxation to handguns only. It's a simple
6 amendment. You either -- let them control locally
7 handguns but now they can control anything. If the
8 amendment is passed they can only control handguns, not
9 shotguns and rifles.
10 CHAIRMAN DOUGLASS: Commissioner Smith.
11 COMMISSIONER SMITH: Question of Commissioner
12 Barkdull. Does this mean that if one of my criminal
13 clients is preparing to rob a bank and his buddy who said
14 he would get him a gun shows up for a meeting to plan the
15 robbery without a gun, he can walk into the gun show, buy
16 a shotgun without any background check and rob the bank?
17 COMMISSIONER BARKDULL: I didn't say he could rob the
18 bank, he could buy the shotgun. The amendment doesn't say
19 anything about robbing the bank.
21 CHAIRMAN DOUGLASS: Commissioner Evans-Jones.
22 Question from Commissioner Evans-Jones.
23 COMMISSIONER EVANS-JONES: I think I know the answer
24 to this, but I think we have gotten a lot of faxes that
25 have said that you're really trying to get rid of
1 concealed weapons. That has nothing to do with this. I
2 just thought maybe you needed to clarify that.
3 COMMISSIONER RUNDLE: I'm glad you brought that up
4 because it is late in the day and I am overlooking very
5 important points and questions that are very legitimate
6 that people do have.
7 CHAIRMAN DOUGLASS: This is not on the amendment.
8 COMMISSIONER RUNDLE: Well, I understand that.
9 CHAIRMAN DOUGLASS: Let's do the amendment. You can
10 come back to it. Commissioner Barnett on the amendment.
11 COMMISSIONER BARNETT: Does the concept of a handgun
12 exclude an assault weapon, assault rifle, automatic
14 COMMISSIONER BARKDULL: Handgun is in the statutes
15 and it probably would exclude those.
16 COMMISSIONER BARNETT: So when you, I just need to
17 understand because I'm not familiar with all the different
18 kind of weapons that there might be. Shotguns, rifles
19 would be excluded if your amendment was adopted?
20 COMMISSIONER BARKDULL: Yes, yes, yes.
21 COMMISSIONER BARNETT: AK-47s, these automatic
22 weapons would be excluded?
23 COMMISSIONER BARKDULL: Probably would.
24 COMMISSIONER BARNETT: So the only thing left would
25 be the small little handgun you put in your pocket?
1 COMMISSIONER BARKDULL: Right.
2 COMMISSIONER BARNETT: Would you explain why you feel
3 that's an appropriate amendment?
4 COMMISSIONER BARKDULL: Because I have received a lot
5 of comments from a lot of friends of mine, people that
6 like to hunt, that have shotguns, that have rifles and
7 they don't think they ought be burdened by this proposal.
8 And I agree with them.
9 CHAIRMAN DOUGLASS: Commissioner Kogan.
10 COMMISSIONER KOGAN: This is to speak on the
11 amendment. You can buy a shotgun and you can buy a rifle
12 and then you just get a metal cutting blade attached to a
13 hacksaw and you saw off the barrels of both weapons and
14 they become concealed weapons.
15 In my career, especially as a prosecutor, as a trial
16 judge, as a defense attorney, I can tell you that there
17 have been many, many murders that have been committed,
18 especially robberies with sawed-off shotguns and sawed-off
19 rifles. So I must oppose this particular amendment.
20 CHAIRMAN DOUGLASS: All right. Any further
21 discussion on the amendment? Commissioner Langley.
22 COMMISSIONER LANGLEY: Both of those,
23 Mr. Commissioner Chief Justice, are illegal to possess; is
24 that not right? They are illegal to possess.
25 And if I can give a lesson 101 in automatic weapons,
1 I asked one of our members what an automatic rifle was.
2 Most of the people that oppose them don't even know. Most
3 of the weapons that any hunters or anybody would have are
4 semiautomatic rifles which means they have a magazine or a
5 clip or several rounds in them, but you must pull the
6 trigger each time that a bullet fires.
7 An automatic weapon, you hold the trigger back and it
8 continues to fire until the clip is gone. It is illegal
9 for anyone to possess an automatic weapon unless you have
10 a federal firearms license. So you don't go out, I don't
11 go to a gun show and buy an automatic weapon. They are
12 not there for sale. Only dealers and people who are
13 licensed by the federal firearms can even own one or have
14 one in your possession. So to have one is breaking the
16 If you want -- you know, it would be great if
17 criminals would obey these laws, but they are not going
18 to. The guns we're talking about are hunting shotguns,
19 and hunting rifles, not those weapons that are already
20 illegal. We already have those laws and they don't work.
21 So let's have some more that don't work.
22 COMMISSIONER KOGAN: May I respond to that?
23 CHAIRMAN DOUGLASS: Commissioner Kogan.
24 COMMISSIONER KOGAN: It's all well and good to say
25 possession of a sawed-off shotgun or a sawed-off rifle is
1 against the law, which it really is. But that's not the
2 issue here. The issue here is getting the legal weapon,
3 that's the full-size shotgun, the full-size rifle, taking
4 it home or to a shop, sawing off the barrel that makes it
5 the illegal weapon.
6 The purpose of this particular proposal, as I
7 understand it, is to make it far more difficult for these
8 people to get these legal weapons and then work them into
9 illegal weapons.
10 (Commissioner Jennings assumes the Chair.)
11 COMMISSIONER JENNINGS: Commissioner Barkdull to
13 COMMISSIONER BARKDULL: I'd like to close on the
14 amendment unless there are some others to be heard on it.
15 COMMISSIONER JENNINGS: Okay. Further on the
16 amendment? Commissioner Morsani, question?
17 COMMISSIONER MORSANI: No.
18 COMMISSIONER JENNINGS: In opposition?
19 COMMISSIONER MORSANI: Yes.
20 COMMISSIONER JENNINGS: You are recognized.
21 COMMISSIONER MORSANI: I'm opposed to the amendment,
22 I'm for the proposal. But we're talking about gun shows
23 primarily. Many of us in here enjoy hunting, we have
24 guns, I have had guns, I have been raised with them all my
25 life. And I just got back from hunting a couple of weeks
2 However, we're talking about these gun shows and you
3 can buy anything there. And you can buy assault weapons,
4 Commissioner Langley. And that's what I think we're
5 driving at. And we do have an element in society that is
6 not very nice folks and they are going to these gun shows,
7 they are buying these weapons. We have all read stories
8 where the police are outgunned, when you get an AK-47.
9 You're exactly right on an automatic weapon. I have
10 got a few of those, but unfortunately some people do file
11 them down and make them automatics rather than
12 semiautomatics. We know that's illegal, but it's done.
13 So I think this amendment should be defeated because
14 I think the proposal in the main is where we should be and
15 I would support that, but I vote against the amendment.
16 Sorry, Mr. Barkdull.
17 COMMISSIONER BARKDULL: I'd like to be heard to close
18 on the amendment.
19 COMMISSIONER JENNINGS: We'll make sure we don't
20 forget about you. Commissioner Rundle, for what purpose?
21 COMMISSIONER RUNDLE: Madam Chairman, I'd like to
22 speak against the amendment.
23 COMMISSIONER JENNINGS: You're recognized.
24 COMMISSIONER RUNDLE: Ladies and gentlemen, one of
25 the whole purposes of this proposal is to expand it from
1 handguns to firearms. And all I would ask you to do is
2 remember that tape, that huge assault rifle that you saw
3 as that guy was leaving the parking lot. He bought it in
4 that gun show. So anyone that says they don't buy them
5 there, you saw it yourself. They do.
6 And I will tell you when you talk to gun store
7 owners, they will tell you that when kids come in, they
8 say they want to buy ammunition. They say, where did you
9 buy that rifle? Where did you buy that shotgun? Oh, I
10 got it at the gun show. So if you believe that they're
11 not selling these kinds of dangerous firearms at gun
12 shows, you're just dead wrong.
13 COMMISSIONER JENNINGS: Further debate on the
14 amendment? Commissioner Barkdull to close.
15 COMMISSIONER BARKDULL: I just want to point out to
16 the commission that the three-day waiting period that's in
17 the Constitution refers only to a handgun. That's in
18 Section VIII, subsection B. There shall be a mandatory
19 period of three days including weekends and legal holidays
20 between the purchase and delivery at retail of any
22 I'm just trying to make this local exception
23 correspond to what's already in the Constitution. I move
24 the amendment.
25 COMMISSIONER JENNINGS: Commissioner Barkdull has
1 closed. Let's see. Let's try this. On the motion by --
2 do you want to have a voice vote? Okay. On motion by
3 Commissioner Barkdull to recommend the amendment. All
4 those in favor say aye; opposed?
5 (Verbal vote taken.)
6 COMMISSIONER JENNINGS: Sounds like it failed.
7 Further amendments? Okay.
8 Commissioner Rundle, shall we line up debate? How
9 many cons are we going to have? Commissioner Connor,
10 anybody else? Okay. How many pros are we going to have?
12 Commissioner Connor, I'm going to give you the --
13 we're doing the five minutes, the ten minutes? How about
14 I give you five and I'll give Commissioner Riley and Kogan
15 two and a half and then Commissioner Rundle can close.
16 COMMISSIONER CONNOR: Madam Chairman, I can tell when
17 I'm spitting into the wind, but I think it's important to
18 say the things that I feel need to be said here.
19 This is one of the few bodies that I have ever
20 participated in that has made light of a profound public
21 outpouring of response to a matter of grave concern. But
22 I would submit to you that that is at least one gauge of
23 public sentiment that this body would do well into
24 taking -- by taking into account.
25 One person's loophole closer is another person's
1 freedom stripper and that's how many people view these
2 proposals. I'm one who views it, frankly, in that light.
3 And I would suggest to you that if indeed there is a
4 pervasive problem that Commissioner Rundle and
5 Commissioner Butterworth have identified, the Legislature
6 is well able to address that problem.
7 Now we have a state statute which effectively has
8 preempted the field in this regard. But the Legislature
9 can certainly respond to that. If indeed, if indeed there
10 is a real and a pervasive problem, then I would submit to
11 you that the elected representatives of the people are not
12 dull to the concerns of the people, particularly as it
13 relates to this issue.
14 You have already seen from the volume of mail, faxes
15 and e-mails that you have received that there is a very,
16 very broad-based, grassroots coalition that is resistant
17 to these proposals. And they are resistant to it because
18 they see it, as we've spoken of before, as an erosion of
19 cherished Second Amendment rights, and as an encroachment
20 and abridgement of their abilities to defend themselves.
21 I just urge you to take into account and weigh public
22 sentiment as it may bear not only on this issue but the
23 entire agenda that winds up being put forth by this body,
24 because I would submit to you that not only is it bad
25 public policy to do in the Constitution what the
1 Legislature is clearly authorized to do by statute, but
2 you put a considerable risk, I think, of other very good
3 proposals that we are seeking to put forth here.
4 So I just urge you to take that into account and be
5 sensitive to it. Thank you.
6 COMMISSIONER JENNINGS: In support, Commissioner
8 COMMISSIONER RILEY: Commissioner Connor, I don't
9 take lightly at all the 2,762 faxes, the 4,749 e-mails
10 that I have gotten. I respect very much the passion that
11 these people have for this issue. I am not a gun owner,
12 but I respect the fact that people are challenged and
13 frightened by what they see as a loss of a right that they
15 I, however, don't read this as something that
16 threatens people's right to bear arms. I see this as a
17 local issue and I see it as a person from the panhandle
18 who will vote for it because I don't want the more
19 populated areas of the state to be able to change the law
20 in the state of Florida to restrict guns all over this
21 state, and to affect the panhandle where the panhandle
22 people may not want that change in their law. I see this
23 as a local issue. And that's why I will vote for it, and
24 that's why I support it.
25 And I do want to say to the hundreds of people that
1 have sent us information on this, I think we all respect
2 your position and I think we all respect the right of
3 people to bear arms. And I don't see that that affects
5 COMMISSIONER JENNINGS: Commissioner Kogan.
6 COMMISSIONER KOGAN: When you look at the proposal,
7 it doesn't interfere with anybody's Second Amendment right
8 to have arms. All it says is that if a local county here
9 in the state of Florida, because of problems that are
10 peculiar to their particular area, wants to put a five-day
11 waiting period from the time you try to buy the gun until
12 it is actually delivered to you, then they have that
13 right. That does not infringe upon your right to bear
15 The same people today who are eligible to buy these
16 particular weapons are the same people who will be
17 eligible if and when this becomes part of the
18 Constitution. You still have that right to go on out and
19 get that particular weapon.
20 The problem we're dealing with here is that I think,
21 quite frankly, people are overreacting to it. And I
22 remember Commissioner Connor when we discussed this, I
23 think it was two weeks ago, I guess, when it first came
24 up, you brought us the particular scenario of you and your
25 family in a trailer and you got worried, you know, because
1 you didn't have access to a weapon.
2 Well, quite frankly, if you're going out and you're
3 going to be in an area where you anticipate there may be
4 trouble, then five days before you leave on your trip just
5 go on in and make arrangements to get that particular
6 weapon. It doesn't stop you from doing that. We have a
7 First Amendment that says that we shall not abridge the
8 right of freedom of speech, but if you go ahead and yell
9 fire in a theater, that's prohibited.
10 So there is no so-called unfettered absolute right in
11 this society of ours, under any constitutional amendment,
12 to go around and do exactly what you want any time you
13 want to do it. The government is permitted and the people
14 acting through their government have the right to put some
15 reasonable restraint on that.
16 And we're not taking away people's guns. I read all
17 these messages that come and of course all of you that are
18 in the private sphere, you're paying for the fax paper,
19 you're paying for the e-mail, and you're paying for your
20 own phones. In my office, you're paying for that too
21 because I have a state office and you're buying my fax
22 paper and whatever the e-mail connections are and whatever
23 the phone connections are. So all of us who are in public
24 office, fortunately for the taxpayers, you're providing us
25 to get those.
1 And when I read these particular messages that come
2 in, you think it's like we stripped the arms away, that
3 is, the firearms away from all the citizens in this
4 country and that this entire republic is going to crumble
5 because people aren't going to have access to their
6 firearms. But that's not true. They are going to have
7 access to their fire arms and if a county says, We need
8 five days in which to accomplish this, that is the only
10 And I submit it's certainly a reasonable restriction
11 and I would vote for this proposal.
12 COMMISSIONER JENNINGS: Commissioner Barnett, I
13 understand we have one minute left. Commissioner Smith?
14 COMMISSIONER SMITH: Point of order.
15 COMMISSIONER JENNINGS: State the point.
16 COMMISSIONER SMITH: Well maybe it's an inquiry.
17 COMMISSIONER JENNINGS: Okay.
18 COMMISSIONER SMITH: Is it too late to offer an
20 COMMISSIONER JENNINGS: Well, it's never too late.
21 COMMISSIONER SMITH: Because -- he answered honestly.
22 He said -- Commissioner Morsani said it depends upon
23 whether we like it.
24 COMMISSIONER JENNINGS: We are on debate at the
1 COMMISSIONER SMITH: It's a one-word amendment and
2 she accepts it and Commissioner Connor's argument prompted
3 it. And that is --
4 COMMISSIONER JENNINGS: We don't have it in front of
5 us. Do you have somebody drafting it?
6 COMMISSIONER SMITH: I'll do it right now.
7 COMMISSIONER JENNINGS: Why don't you do that and,
8 Commissioner Barnett, we'll let you speak for a minute.
9 And then we'll just kind of --
10 COMMISSIONER BARNETT: I'll filibuster.
11 COMMISSIONER JENNINGS: -- dance here for a minute
12 waiting on Commissioner Smith.
13 COMMISSIONER BARNETT: Thank you. I want to speak in
14 favor of this. And Commissioner Justice Kogan said many
15 of the things that I wanted to say and I will not say
16 them, repeat them, but simply stress to you-all that I do
17 not believe this is -- I think this is a pretty modest
18 proposal. That all we're doing is placing a reasonable
19 restriction on the acquisition of firearms. And I do not
20 see it inconsistent at all with the Second Amendment.
21 And Commissioner Connor, sometimes people joke about
22 things because of the lateness of the day or just because
23 it's been a shared experience. I have talked to about 30
24 people who have called my office, they have my direct
25 number. I have responded personally to most of the
1 e-mails until they just overwhelmed me, and I have
2 reviewed the letters.
3 But one of the things that I have found interesting
4 in my personal conversations with people is that, to the
5 person, they have -- when I have asked them, they have not
6 read the proposed constitutional amendment. I faxed it to
7 a number of them. But to the person, they have called and
8 they have not read it. And they are responding to
9 something that I tell them is not in that amendment.
10 And the other thing is more than half of the people
11 who I have talked to, I don't know about all, I haven't
12 done a survey of my written responses, are not from the
13 state of Florida. They are not citizens of this state and
14 I just thought that would be interesting to share with
16 COMMISSIONER JENNINGS: Commissioner Smith, are you
17 about ready? I see you writing.
18 COMMISSIONER SMITH: Thank you, Madam Chair. Bill
19 drafting is assisting me with the bill, it's being run off
20 now. But with your permission --
21 COMMISSIONER JENNINGS: Why don't you explain it and
22 then we'll read it.
23 COMMISSIONER SMITH: -- yes, okay. Thank you.
24 In the spirit of the very informative comments of
25 Commissioner Connor, one of the things that we heard from
1 those who were concerned is that this background check
2 could possibly involve medical or mental records. And so
3 I want to insert before the word "background" the word
4 "criminal" so that you will be checking for criminal
5 records and not taking my records to find whether -- my
6 medical records or mental records.
7 And I think that's necessary. Criminal records,
8 criminal background check.
9 COMMISSIONER JENNINGS: Madam Secretary, do we have a
10 time frame on our amendment? No, I didn't mean that, I
11 meant an expected time frame, like where is it? Okay.
12 Type faster.
13 Commissioner Langley, for what purpose?
14 COMMISSIONER LANGLEY: Response or question.
15 COMMISSIONER JENNINGS: You're recognized.
16 CHAIRMAN DOUGLASS: Of the sponsor of the amendment
17 or Commissioner Rundle?
18 COMMISSIONER LANGLEY: Commissioner Rundle. The
19 question is: If your proposal passes, then in any county
20 that so chooses, every citizen, to go buy a shotgun or a
21 rifle at a regular hardware store, is now going to have
22 to, one, wait five days and, two, have a complete
23 background check. And that is currently not the law; is
24 that right?
25 COMMISSIONER JENNINGS: Commissioner Rundle.
1 COMMISSIONER RUNDLE: First of all, it would be up to
2 what the local community decides to do. You don't even
3 know what the parameters are going to be. We know what at
4 least minimally it can be. So, I mean, they may stay with
5 three days, they may go to five days, it may be four days.
6 The background checks are now required --
7 COMMISSIONER LANGLEY: Not for shotguns and rifles.
8 COMMISSIONER RUNDLE: No, it's not. But that's one
9 of the reasons to expand it to firearms, to include all of
11 COMMISSIONER JENNINGS: I assume, Commissioner
12 Barkdull, you're up for a motion?
13 COMMISSIONER BARKDULL: I'd like to move that the
14 time of recess be extended until we complete debate on
15 this issue and dispose of it, and announcements.
16 COMMISSIONER JENNINGS: All those in favor of the
17 amendment say aye; opposed?
18 (Verbal vote taken.)
19 COMMISSIONER JENNINGS: Motion passes. Commissioner
21 CHAIRMAN DOUGLASS: I have a question on the
22 amendment. As I understand it, if somebody had a record
23 of mental illness that had required institutionalizing him
24 or her for the use of a firearm dangerously or whatever
25 else may have been the reason they're there, and there was
1 no criminal record, then you would not, under your
2 proposal, be able to obtain that through the check; is
3 that right?
4 COMMISSIONER JENNINGS: Commissioner Smith.
5 COMMISSIONER SMITH: Well, I'm going to let the
7 COMMISSIONER RUNDLE: In anticipation of that
8 question arising, we checked with the Florida Department
9 of Law Enforcement, which I think most of you know does
10 the background checks now. And we're informed by them
11 that all involuntary commitments based on minimum
12 competency, whether it's a Baker Act or court
13 determination of competency, is registered on the criminal
14 background. So in other words, involuntary commitments
15 would register just the same as a criminal history would.
16 CHAIRMAN DOUGLASS: The reason I ask that is because,
17 as I understood his amendment, it said criminal only and
18 that is not technically a criminal record unless they were
19 charged with something, other than being insane.
20 COMMISSIONER JENNINGS: Let's get us in the right
21 posture because we have the amendment now. Will the
22 reading clerk read the amendment?
23 READING CLERK: By Commissioner Smith, on Page 1,
24 Line 25 before the word "background" insert "criminal."
25 COMMISSIONER JENNINGS: Commissioner Smith.
1 COMMISSIONER SMITH: The criminal background check
2 that the FDLE does now with regard to the purchase of
3 firearms through a shop or whatever includes those
4 commitments on the actual record.
5 What we're doing is we're responding to a legitimate
6 concern that was raised specifically in the Washington
7 battle that was fought which stated that what this
8 proposal will do is open your medical records up to checks
9 to determine whether or not you may be incompetent.
10 So we need to make sure this is tight and this is
11 narrow and it does only what we want it to do and not open
12 for a challenge that it would open people's medical
13 records. Because if that's the case, this is dead on
14 arrival. We don't want that to happen, those of us who
15 are opponents.
16 CHAIRMAN DOUGLASS: That still doesn't answer my
17 question. When you put into the Constitution, criminal
18 record, it doesn't matter what the FDLE says is a criminal
19 record. A criminal record is a criminal record. Now they
20 may be including things in their criminal checks presently
21 under the statute that include commitments that are not
22 criminal, and that's fine. But under this provision if
23 they included them, they would be improper unless they
24 were truly criminal records.
25 Now if you said something else, and that's the reason
1 I asked you the question because I think it's more
2 important in many instances to get people that might be
3 unstable from being able to pick up guns because those are
4 the ones that seem to do it quite often. And that's why I
5 asked you the question. It seems to me that it's not
6 artfully drawn enough to include what is now being called
7 a criminal investigation by FDLE, which would not be
8 constitutional under this, I don't think.
9 COMMISSIONER SMITH: I can assure you if we don't
10 make it clear that we're not looking into individuals'
11 medical records, this is dead.
12 COMMISSIONER JENNINGS: Further on the amendment?
13 Commissioner Connor.
14 COMMISSIONER CONNOR: In support of the amendment,
15 ultimately against the proposal, I think Commissioner
16 Smith brings to light a very legitimate and very important
17 concern. This proposal, as amended, or as would be
18 amended, gives government just another opportunity to pry
19 into the background of the private lives of its citizens,
20 without the benefit of the kinds of protections that now
21 exist under the state background check.
22 And so, local governments who may have far less
23 sophistication in protecting the privacy rights of people
24 who are being investigated, the possibility of that
25 information leaking out in the public domain just
1 exemplifies some of the privacy concerns that people have
2 about this matter.
3 And I think Commissioner Smith's proposed amendment
4 highlights that, and I think it's an improvement over
5 what's on the table, but I think you have really put your
6 finger in large part on the pulse of part of the problem
7 here. Thank you.
8 COMMISSIONER JENNINGS: Further on the amendment?
9 Commissioner Morsani.
10 COMMISSIONER MORSANI: Yes, ma'am.
11 COMMISSIONER JENNINGS: Questions of Commissioner
13 COMMISSIONER MORSANI: Yes. You legal minds here,
14 where is the language that's what it is now? That's a
15 question with quotations around it. In other words, why
16 wouldn't you use the same language for this background
17 check that's used in the current statute? Can we use that
18 same language?
19 COMMISSIONER SMITH: You were reading my mind. What
20 I was going to suggest is when I wanted to put it on the
21 table for, I just caught it in the middle of the debate.
22 It is a concern. Commissioner Douglass raises a good
23 point. I want it to be artfully drawn. We already have
24 language, we want to make it consistent. What we don't
25 want to do in this rush is to do something that's
2 So what I'd like for us to do, what I'd like to do
3 right now -- Commissioner Thompson, Commissioner Thompson,
4 not constitutionally --
5 (Off-the-record comment.)
6 COMMISSIONER SMITH: -- the statute does. So what
7 I'd like to do at this time, for everyone's edification,
8 with the promise that I will, in fact, find out what that
9 language is or work with others to get language that you
10 feel is artfully drawn, and amend this, if it passes
11 today. At this time I'd like to withdraw my amendment and
12 vote on the proposal with the understanding that there
13 will be an amendment coming which is more artfully drawn.
14 COMMISSIONER JENNINGS: Show the amendment withdrawn.
15 Commissioner Rundle, are you ready to close? Are we ready
16 to close? We used up all the time but just in case.
17 Commissioner Rundle.
18 COMMISSIONER RUNDLE: Thank you, Madam Chairman.
19 Just a few things I want to respond to specific questions.
20 One, Commissioner Evans-Jones, just to clarify that issue,
21 persons carrying concealed weapons permits are
22 specifically excluded as they are now.
23 I also would like to address the issue of
24 Commissioner Connor addressing opposition. There's a lot
25 of support for this as well. And I must tell you that one
1 of the reasons, I want to repeat to you, that we did that
2 poll is I appreciate as much as every single one of you
3 the time and the effort that you put in to putting good,
4 important things on the ballot. And I do not want to
5 jeopardize that.
6 Contrary to what you may think, I think this is a
7 winner. And I think the polls show that. And if you look
8 in your packet, I'm not going to go through it now because
9 I have 30 seconds, but look at the support that it has.
10 And really what we're saying is we're not taking anybody's
11 rights away. We're giving rights back to local
12 communities, if they want it.
13 I'm not going to impose a law or ask anybody to
14 impose a law on their friends, Commissioner Barkdull, if
15 you live in a community where they're satisfied with the
16 law, that's good. But there are urban areas that
17 desperately need, again I said this before, they need
18 their hands untied. If they want to protect themselves,
19 we should allow them to do that. I really would
20 appreciate your very fervent support of this issue. Thank
22 COMMISSIONER JENNINGS: Commissioner Rundle to close.
23 On the motion by Commissioner Rundle to favorably
24 recommend Proposal No. 167. Unlock the machines and
25 indicate your vote.
1 (Vote taken and recorded electronically.)
2 COMMISSIONER JENNINGS: Lock the machines and
3 announce the vote.
4 READING CLERK: Twenty yeas, 9 nays, Madam Chairman.
5 COMMISSIONER JENNINGS: So the proposal passes.
6 Commissioner Barkdull, are we on announcements?
7 COMMISSIONER BARKDULL: Yes, ma'am.
8 COMMISSIONER JENNINGS: You're recognized.
9 COMMISSIONER BARKDULL: I'd like to announce there
10 will be a Rules and Calendar Committee meeting immediately
11 upon adjournment in Room 317, one floor down and back
12 behind where the rostrum would be.
13 Any other announcements?
14 COMMISSIONER JENNINGS: Anything anybody wants to
16 COMMISSIONER BARKDULL: I move we recess until the
17 hour of 9:00 a.m. tomorrow morning.
18 COMMISSIONER JENNINGS: Without objection.
19 (Session adjourned at 5:10 p.m.)
3 STATE OF FLORIDA:
4 COUNTY OF LEON:
WE, JULIE L. DOHERTY, KRISTEN L. BENTLEY and
6 MONA L. WHIDDON, Court Reporters, certify that we were
authorized to and did stenographically report the foregoing
7 proceedings and that the transcript is a true and complete
record of our stenographic notes.
9 DATED this ______ day of ____________, 1998.
12 JULIE L. DOHERTY, RPR
KRISTEN L. BENTLEY
17 MONA L. WHIDDON
18 Division of Administrative Hearings
1230 Apalachee Parkway
19 Tallahassee, Florida 32399-3060
(850) 488-9675 Suncom 278-9675
20 Fax Filing (850) 921-6847