The Unconstitutionality of the Florida Property Tax

Michael A. Goldstein

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If you held title to a particular residential property in Delray Beach, Florida the annual property tax due to the town could be either $600 or $2,800. What determines the value owed? The answer may shock you. Your status as a person domiciled full time in the state of Florida vs. your status as a seasonal resident, aka, “snow birds”. The answer to this question seems to violate the strict scrutiny standard of the equal protection clause of the constitution.

The legislature has seen fit to allow towns to tax “snow birds” several times the amount of tax as they do full time residents. The people who fall into the higher tax bracket would also seem to fall into a protected class of seasonal sate residents. Moreover, this class has a fundamental right to travel pursuant to Federal case law. In a relevant case, seasonal residents alleged that the Department of Labor and Industries wrongfully denied workers compensation rights as unconstitutional because it violated their fundamental right to travel. The court held that the exclusion for seasonal workers unconstitutionally infringed on the seasonal residents’ right to travel and denied them equal protection of the law. The court held that the exclusion constituted a penalty on the seasonal residents’ fundamental right to travel. Macias v. Dep't of Labor & Industry 100 Wn.2d 263 (1983).

Any such discrimination against an individual in violation of his or her fundamental rights, through state action can only be upheld by a court where the discrimination is justified by a compelling governmental interest, the policy must be narrowly tailored to achieve desired goal and there can not be a less restrictive way to effectively achieve the compelling government interest. McIntyre v. Ohio Elections Com. , 514 U. S. 334 (1995); H-CHH Associates v. Citizens for Representative Government 193 Cal. App.3d 1193 (1987).

As a person who has no stake in the subject matter of this article, and an unbiased observer of this tax practice, I can not comprehend what the motivation of the state is for the additional tax outside of simply raising additional revenue by discriminating against those individuals who want to assert their fundamental right to travel. The Florida trial court has held that the a Florida statute providing for additional homestead protection for those residents who lived in the state for more than five years violated the “right to travel and equal protection of the laws under the United States Constitution. Osterndorf v. Turner, 426 So.2d 539 (1983).

In preparing this article, I have questioned several permanent Florida residents regarding the aforementioned tax practice and they all agree that though the state and individual towns clearly need additional police, fire fighters, improved public schools and repair of streets and highways, the burden should not fall on the shoulders of those who utilize the services the least, if at all.

One possible solution to the problem may be a temporary resident tax paid by those who rent through properties more than four months a year, thereby garnishing revenue for the commercial use of residential real estate in Florida. The obvious problem with this solution is that it may have a significant detrimental affect on tourism, the lifeblood of the Floridian economy. Another proposed solution is to bring back the impound tax on automobiles. This tax’s automobiles brought into the state for a prolonged period of time for those cars registered in another state, or owned by “snow birds”. The idea of this tax seems to be more appropriate, in that those who are using the Florida roads will pay a tax for its use, where they are not paying the state for registration.

What is the gist of all of this? There are no easy answers, but disparate treatment through the tax code of a protected class of individuals by way of attempting to limit one’s right to travel is certainly not the least restrictive means to an end.

This article was written by attorney Michael Goldstein of the Law Office of Goldstein and Clegg, LLC, a Massachusetts and Federal employment, bankruptcy and real estate law firm located in Massachusetts. Attorney Goldstein has no stake in the subject matter of this article and to that end, owns no property in the state of Florida. –


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