State Seal Calendar

Meeting Proceedings for February 25, 1998 (File size=510K





                                                                          1

          1                          STATE OF FLORIDA
                             CONSTITUTION REVISION COMMISSION
          2

          3

          4

          5
                                    COMMISSION MEETING
          6

          7

          8

          9
              DATE:                   February 25, 1998
         10
              TIME:                   Commenced at 9:00 a.m.
         11                           Concluded at 5:00 p.m.

         12   PLACE:                  The Senate Chamber
                                      The Capitol
         13                           Tallahassee, Florida

         14   REPORTED BY:            KRISTEN L. BENTLEY
                                      JULIE L. DOHERTY, RPR
         15                           MONA L. WHIDDON
                                      Court Reporters
         16                           Division of Administrative Hearings
                                      The DeSoto Building
         17                           1230 Apalachee Parkway
                                      Tallahassee, Florida
         18

         19

         20

         21

         22

         23

         24

         25


  



                                                                          2

          1                             APPEARANCES

          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
              PAT BARTON
          6   ROBERT M. BROCHIN
              THE HONORABLE ROBERT A. BUTTERWORTH
          7   KEN CONNOR (ABSENT P.M. SESSION ONLY)
              CHRIS CORR
          8   SENATOR ANDER CRENSHAW
              VALERIE EVANS
          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
              DICK LANGLEY
         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
         21
              IRA H. LEESFIELD (ABSENT)
         22   LYRA BLIZZARD LOGAN (ABSENT)

         23

         24

         25


  



                                                                          3

          1                             PROCEEDINGS

          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.

          6             (Pause.)

          7             SECRETARY BLANTON:  Quorum call, quorum call.  All

          8        commissioners indicate your presence, all commissioners

          9        indicate your presence.

         10             (Pause.)

         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


  



                                                                          4

          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

         18        you.

         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






                                                                          5

          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

          9        calendar.

         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.


  



                                                                          6

          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

          5        that.

          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


  



                                                                          7

          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,

         10        too.

         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


  



                                                                          8

          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,

         21        please?

         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


  



                                                                          9

          1        State.

          2             CHAIRMAN DOUGLASS:  All right, Commissioner

          3        Ford-Coates.

          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

         17        Drafting?

         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.


  



                                                                          10

          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


  



                                                                          11

          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

         24        questions?

         25             We have not shortened the time.  What we have done is


  



                                                                          12

          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

          9        earlier.

         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.


  



                                                                          13

          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

          6        amendment.

          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

         23        recognized.

         24             COMMISSIONER FORD-COATES:  This merely returns the

         25        deadline for submitting our work back to 180 days from the


  



                                                                          14

          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

          7        here.

          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

         14        sign.

         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


  



                                                                          15

          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


  



                                                                          16

          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

         12        provisions.

         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


  



                                                                          17

          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

         22        gender-specific.

         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


  



                                                                          18

          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


  



                                                                          19

          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

         13        man.

         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


  



                                                                          20

          1        not had an opportunity to study the impact of this

          2        proposal on the most basic fundamental document in this

          3        state.

          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

         18        proposal.

         19             So I would urge that we vote against this at this

         20        time.

         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.


  



                                                                          21

          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

          8        neutral.

          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

         20        morning.

         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


  



                                                                          22

          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

          9        it.

         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.


  



                                                                          23

          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.


  



                                                                          24

          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


  



                                                                          25

          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


  



                                                                          26

          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

         24        districts.

         25             CHAIRMAN DOUGLASS:  Commissioner Alfonso, you were


  



                                                                          27

          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.


  



                                                                          28

          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

         24        book.

         25             (Off-the-record comment.)


  



                                                                          29

          1             COMMISSIONER SCOTT:  Correction, I was not -- I had

          2        assumed from Style and Drafting that it was a technical

          3        amendment.

          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


  



                                                                          30

          1        amendments on the proposal, I would yield to the proponent

          2        of the proposal to explain it and then explain his

          3        amendment.

          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

         16        focused.

         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


  



                                                                          31

          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

         20        neutrality.

         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,


  



                                                                          32

          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

          3        effort.

          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.


  



                                                                          33

          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


  



                                                                          34

          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.

          6        Okay.

          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

         21        taxes.

         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


  



                                                                          35

          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

         10        posture.

         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


  



                                                                          36

          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


  



                                                                          37

          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


  



                                                                          38

          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

         17        taxes.

         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.


  



                                                                          39

          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

          9        vote.

         10             READING CLERK:  Seventeen yeas, 12 nays,

         11        Mr. Chairman.

         12             CHAIRMAN DOUGLASS:  By your vote you've adopted the

         13        amendment.

         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


  



                                                                          40

          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

         13        amendment.

         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


  



                                                                          41

          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

          9        Nabors.

         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.


  



                                                                          42

          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


  



                                                                          43

          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

          7        Kogan.

          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


  



                                                                          44

          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

         15        recognized.

         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


  



                                                                          45

          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


  



                                                                          46

          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


  



                                                                          47

          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

          6        quickly.

          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?


  



                                                                          48

          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


  



                                                                          49

          1        before.  I've seen that in the Legislature.

          2             How do you control by law a revenue estimating

          3        conference?

          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

         24        vote.

         25             READING CLERK:  Sixteen yeas, 14 nays, Mr. Chairman.


  



                                                                          50

          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


  



                                                                          51

          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.


  



                                                                          52

          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


  



                                                                          53

          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


  



                                                                          54

          1        Constitution.

          2             CHAIRMAN DOUGLASS:  All right.  Proponent,

          3        Commissioner Ford-Coates.  You have a question,

          4        Commissioner Sundberg?  Commissioner Ford-Coates, you're

          5        recognized.

          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.


  



                                                                          55

          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


  



                                                                          56

          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

          5        minutes.

          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


  



                                                                          57

          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


  



                                                                          58

          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


  



                                                                          59

          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


  



                                                                          60

          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


  



                                                                          61

          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,


  



                                                                          62

          1        Commissioner Sundberg.  I just need a couple of seconds to

          2        close.

          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

         18        this.

         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


  



                                                                          63

          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.


  



                                                                          64

          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

          8        machine.

          9             (Vote taken and recorded electronically.)

         10             CHAIRMAN DOUGLASS:  Lock the machine and announce the

         11        vote.

         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.


  



                                                                          65

          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


  



                                                                          66

          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

         10        amendment.

         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


  



                                                                          67

          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

         20        Scott.

         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.


  



                                                                          68

          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


  



                                                                          69

          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


  



                                                                          70

          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,

         15        Illinois.

         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


  



                                                                          71

          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,


  



                                                                          72

          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


  



                                                                          73

          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

         21        provide.

         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


  



                                                                          74

          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

         12        government.

         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


  



                                                                          75

          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


  



                                                                          76

          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

         16        Everglades.

         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

         20        opponent.

         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


  



                                                                          77

          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

         20        you.

         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


  



                                                                          78

          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

         25        recognized.


  



                                                                          79

          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

         19        problems.

         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


  



                                                                          80

          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


  



                                                                          81

          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.


  



                                                                          82

          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.

         11             (Laughter.)

         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


  



                                                                          83

          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

         17        recognized.

         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


  



                                                                          84

          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

          6        like.

          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.


  



                                                                          85

          1             COMMISSIONER LANGLEY:  Commissioner Sundberg is

          2        recognized.

          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

          8        amendment.

          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


  



                                                                          86

          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


  



                                                                          87

          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

         11        Barkdull.

         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

         20        correct?

         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


  



                                                                          88

          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

         19        further?

         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


  



                                                                          89

          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


  



                                                                          90

          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


  



                                                                          91

          1        proposal.

          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

         15        Mills?

         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.


  



                                                                          92

          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


  



                                                                          93

          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


  



                                                                          94

          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

         14        recognized.

         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

         21        question.

         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.


  



                                                                          95

          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


  



                                                                          96

          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

         10        possibility.

         11             COMMISSIONER KOGAN:  Well, you know, anything is a

         12        possibility.

         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

         24        so.

         25             CHAIRMAN DOUGLASS:  If you want to overrule Snyder,


  



                                                                          97

          1        you pass the amendment, is that --

          2             COMMISSIONER KOGAN:  It has that effect of doing

          3        that.

          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

         15        Mills.

         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;

         21        opposed?

         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


  



                                                                          98

          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


  



                                                                          99

          1        a lot of problems so I would urge you to adopt this

          2        proposal.

          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


  



                                                                          100

          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


  



                                                                          101

          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.


  



                                                                          102

          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

         24        passes.

         25             COMMISSIONER ZACK:  No further questions.


  



                                                                          103

          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

          4        Wetherington.

          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


  



                                                                          104

          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


  



                                                                          105

          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.


  



                                                                          106

          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

         10        anymore.

         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,


  



                                                                          107

          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.


  



                                                                          108

          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

          8        Wetherington.

          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.

         18             (Laughter.)

         19             CHAIRMAN DOUGLASS:  I don't know how to take that; do

         20        you?

         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

         25        vote.


  



                                                                          109

          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

          8        it?

          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.


  



                                                                          110

          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


  



                                                                          111

          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.

         13             (Laughter.)

         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


  



                                                                          112

          1        Mills.

          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

         24        proponent?

         25             (Off-the-record comment.)


  



                                                                          113

          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


  



                                                                          114

          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.


  



                                                                          115

          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

         20        provision.

         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.


  



                                                                          116

          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

         16        Evans-Jones.

         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


  



                                                                          117

          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,


  



                                                                          118

          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

         17        Scott.

         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


  



                                                                          119

          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,


  



                                                                          120

          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


  



                                                                          121

          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


  



                                                                          122

          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

          5        noncontroversial.

          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

         10        amendment.

         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.


  



                                                                          123

          1             COMMISSIONER MATHIS:  I urge your support of the

          2        proposal.

          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


  



                                                                          124

          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

          6        Mills?

          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

         11        privilege?

         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.


  



                                                                          125

          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


  



                                                                          126

          1        Barkdull.

          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

         20        column.

         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.


  



                                                                          127

          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

         14        recognized.

         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


  



                                                                          128

          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.


  



                                                                          129

          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


  



                                                                          130

          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


  



                                                                          131

          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,


  



                                                                          132

          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


  



                                                                          133

          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

         22        on.

         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,


  



                                                                          134

          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

         25        recognized.


  



                                                                          135

          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

          5        state.

          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


  



                                                                          136

          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


  



                                                                          137

          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


  



                                                                          138

          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?


  



                                                                          139

          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

          4        issue.

          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.


  



                                                                          140

          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


  



                                                                          141

          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


  



                                                                          142

          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

         16        Langley.

         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


  



                                                                          143

          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

         23        subject?

         24             COMMISSIONER FREIDIN:  No, I did not.

         25             CHAIRMAN DOUGLASS:  Professor McGinley did.


  



                                                                          144

          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

          7        Wetherington.

          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


  



                                                                          145

          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


  



                                                                          146

          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

         16        vote.

         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


  



                                                                          147

          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


  



                                                                          148

          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.


  



                                                                          149

          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

         10        indicated.

         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


  



                                                                          150

          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

         10        else.

         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

         20        vote.

         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


  



                                                                          151

          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

         12        services.

         13             CHAIRMAN DOUGLASS:  All right.  Commissioner

         14        Sundberg.

         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


  



                                                                          152

          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

          5        women.

          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

         18        book.

         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.


  



                                                                          153

          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

         24        proposal.

         25             Likewise, it's very limited and it is focused in the


  



                                                                          154

          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

         24        out.

         25             COMMISSIONER SUNDBERG:  I suggest to you it's out of


  



                                                                          155

          1        order.

          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


  



                                                                          156

          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"


  



                                                                          157

          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


  



                                                                          158

          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

         16        amendment.

         17             (Vote taken and recorded electronically.)

         18             CHAIRMAN DOUGLASS:  Lock the machine and announce the

         19        vote.

         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


  



                                                                          159

          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


  



                                                                          160

          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


  



                                                                          161

          1        question.

          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


  



                                                                          162

          1        Langley.

          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


  



                                                                          163

          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

         21        name?

         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

         25        question.


  



                                                                          164

          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

          8        opponent.

          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


  



                                                                          165

          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


  



                                                                          166

          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

          9        life.

         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

         23        environment.

         24             And this is a quote.  "All minorities are asked to

         25        come on the campus three days early for indoctrination.


  



                                                                          167

          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

         22        gender.

         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


  



                                                                          168

          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

         20        repatriations?

         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


  



                                                                          169

          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

          7        through.

          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

         22        independence."

         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.


  



                                                                          170

          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


  



                                                                          171

          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


  



                                                                          172

          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


  



                                                                          173

          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

         15        privileges.

         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


  



                                                                          174

          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

         25        granted.


  



                                                                          175

          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


  



                                                                          176

          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


  



                                                                          177

          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


  



                                                                          178

          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

         18        remedy.

         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


  



                                                                          179

          1        under the wrongful death action and it made no sense

          2        whatsoever.

          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

         16        question.

         17             COMMISSIONER WETHERINGTON:  The Legislature changed

         18        that age limit from 18 or so to 25, didn't they, in the

         19        past?

         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


  



                                                                          180

          1        agreement that there is no desire to change it, nor would

          2        it be possible to be changed under the current

          3        environment.

          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

          8        age.

          9             CHAIRMAN DOUGLASS:  Further questions?  Commissioner

         10        Barkdull.

         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


  



                                                                          181

          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

         21        that.

         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?


  



                                                                          182

          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


  



                                                                          183

          1        they are suffering.  And frequently that pain is reflected

          2        in filing suit, whether or not that suit has a sound

          3        basis.

          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

         13        proponent.

         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


  



                                                                          184

          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


  



                                                                          185

          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

         13        there.

         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

         20        differently.

         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.


  



                                                                          186

          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


  



                                                                          187

          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

         16        vote.

         17             READING CLERK:  Eleven yeas, 20 nays, Mr. Chairman.

         18             CHAIRMAN DOUGLASS:  By your vote -- Commissioner

         19        Zack.

         20             COMMISSIONER ZACK:  I would yield to Commissioner

         21        Connor.

         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


  



                                                                          188

          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

         13        hearing.

         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


  



                                                                          189

          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


  



                                                                          190

          1        appropriately.

          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

         20        that.

         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


  



                                                                          191

          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


  



                                                                          192

          1        is No. 187 by Commissioner Connor.  Would you read it,

          2        please?

          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

         12        187.

         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.


  



                                                                          193

          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


  



                                                                          194

          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

         20        states.

         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


  



                                                                          195

          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

         19        nature.

         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


  



                                                                          196

          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


  



                                                                          197

          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

         16        order."

         17             CHAIRMAN DOUGLASS:  Commissioner Butterworth, you're

         18        recognized.

         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


  



                                                                          198

          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.


  



                                                                          199

          1             (Laughter.)

          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

         15        was.

         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.


  



                                                                          200

          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

         14        this.

         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


  



                                                                          201

          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.


  



                                                                          202

          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.


  



                                                                          203

          1             COMISSIONER THOMPSON:  Commissioner Barnett, for what

          2        purpose?

          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

         17        respond?

         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

         21        before.

         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


  



                                                                          204

          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


  



                                                                          205

          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

         12        them.

         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

         24        compelling?

         25             COMMISSIONER CONNOR:  Yes, yes, I mean -- no, no, no,


  



                                                                          206

          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

         20        criminal.

         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.


  



                                                                          207

          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


  



                                                                          208

          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

         16        courts.

         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,


  



                                                                          209

          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


  



                                                                          210

          1        Barton?

          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


  



                                                                          211

          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

         13        respond.

         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


  



                                                                          212

          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


  



                                                                          213

          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

          9        afternoon.

         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


  



                                                                          214

          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


  



                                                                          215

          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

         14        up.

         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


  



                                                                          216

          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


  



                                                                          217

          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


  



                                                                          218

          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


  



                                                                          219

          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

         13        proposal.

         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


  



                                                                          220

          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


  



                                                                          221

          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


  



                                                                          222

          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.


  



                                                                          223

          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

         17        all.

         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


  



                                                                          224

          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

         23        sentences?

         24             COMMISSIONER BUTTERWORTH:  I believe this is

         25        important for this to be in the Constitution so this will


  



                                                                          225

          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

         16        true.

         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


  



                                                                          226

          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


  



                                                                          227

          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

         24        hearings.

         25             CHAIRMAN DOUGLASS:  Commissioner Rundle to close, you


  



                                                                          228

          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

         24        serve.

         25             CHAIRMAN DOUGLASS:  All right.  Commissioner Mills.


  



                                                                          229

          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.)


  



                                                                          230

          1             CHAIRMAN DOUGLASS:  Lock the machine and announce the

          2        vote.

          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

         22        proposal.

         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


  



                                                                          231

          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


  



                                                                          232

          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

         24        only.

         25             And I realize there's been an amendment put on your


  



                                                                          233

          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?


  



                                                                          234

          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

         20        Chair.

         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.


  



                                                                          235

          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

          9        passed.

         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


  



                                                                          236

          1        awkwardness and unfairness of the claims bill procedure.

          2        I would like, first, to move the amendment which is on the

          3        floor.

          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'

         11        fees.

         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

         17        amendment.

         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


  



                                                                          237

          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

         24        Sundberg.

         25             COMMISSIONER SUNDBERG:  Question, please,


  



                                                                          238

          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


  



                                                                          239

          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.


  



                                                                          240

          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

         25        Ford-Coates?


  



                                                                          241

          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


  



                                                                          242

          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

         25        4:20.


  



                                                                          243

          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

         11        tomorrow.

         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


  



                                                                          244

          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

         13        items.

         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

         17        calendar.

         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.


  



                                                                          245

          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


  



                                                                          246

          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


  



                                                                          247

          1        amendments on the table.  I recognize Commissioner

          2        Barnett, who's speaking for Style and Drafting; is that

          3        right?

          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.

          8             (Laughter.)

          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


  



                                                                          248

          1        table.  Are these your amendments?  Whose amendments are

          2        these?

          3             (Off-the-record comment.)

          4             COMMISSIONER RUNDLE:  Commissioner Alfonso filed one

          5        first, then Commissioner Langley, then Commissioner

          6        Barkdull.

          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


  



                                                                          249

          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


  



                                                                          250

          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

         10        access.

         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


  



                                                                          251

          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

         11        access.

         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.


  



                                                                          252

          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

          8        that.

          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.


  



                                                                          253

          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

         10        forward.

         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.


  



                                                                          254

          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.

         20             (Laughter.)

         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


  



                                                                          255

          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

         13        weapon?

         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?


  



                                                                          256

          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,


  



                                                                          257

          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

         15        law.

         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


  



                                                                          258

          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

         12        respond.

         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


  



                                                                          259

          1        ago.

          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


  



                                                                          260

          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

         21        handgun.

         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


  



                                                                          261

          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?

         11        Okay.

         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


  



                                                                          262

          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


  



                                                                          263

          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

          7        Riley.

          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

         14        have.

         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


  



                                                                          264

          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

          4        this.

          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

         14        arms.

         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


  



                                                                          265

          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.


  



                                                                          266

          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

          9        restriction.

         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

         19        amendment?

         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

         25        moment.


  



                                                                          267

          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


  



                                                                          268

          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

         15        you-all.

         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


  



                                                                          269

          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.


  



                                                                          270

          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

         10        those.

         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

         20        Douglass.

         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


  



                                                                          271

          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

          6        sponsor.

          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.


  



                                                                          272

          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


  



                                                                          273

          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


  



                                                                          274

          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

         12        Smith?

         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


  



                                                                          275

          1        inconsistent.

          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


  



                                                                          276

          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

         21        you.

         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.


  



                                                                          277

          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

         15        say?

         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.)

         20

         21

         22

         23

         24

         25


  



                                                                          278

          1                             CERTIFICATE

          2

          3   STATE OF FLORIDA:

          4   COUNTY OF LEON:

          5
                        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.
          8

          9             DATED this ______ day of ____________, 1998.

         10

         11
                                 _________________________________
         12                      JULIE L. DOHERTY, RPR

         13

         14                      _________________________________
                                 KRISTEN L. BENTLEY
         15

         16
                                 _________________________________
         17                      MONA L. WHIDDON
                                 Court Reporters
         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

         21

         22

         23

         24

         25