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however, the Florida Constitution did not prohibit the Legislature from authorizing local governments to provide public money to private business. Joseph W. Little, The Historical Development of Constitutional Restraints on the Power of Florida Governmental Bodies to Borrow Money, 20 Stetson L. Rev. 647, 655-57 (1991); see also art. XIII, § 10, Fla. Const. (1865) ("The General Assembly shall not pledge the faith and credit of the State to raise funds in the aid of any corporation whatever."); art. XIII, § 10, Fla. Const. (1861) (same); art. XIII, § 13, Fla. Const. (1838) (same). Without a prohibition against local government financing private business, public financing of private business became commonplace. Little, supra, at 656. For example, local governments underwrote railroad expansions by subscribing to stock in railroad companies. Id.; see also Brautigam v. White, 64 So. 2d 781, 784 (Fla. 1953).


As explained by this Court in Bailey v. City of Tampa, 111 So. 119 (Fla. 1926), the prevalence of public financing of private business resulted in the adoption of the prohibition contained in the 1885 Florida Constitution:


Section 10 of article 9 of our organic law was first adopted in 1875 as an amendment to section 7 of article 13 of the Constitution of



1868. The reason for this amendment was that, during the years immediately preceding its adoption, the state and many of its counties, cities, and towns had by legislative enactment become stockholders or bondholders in, and had in other ways loaned their credit to, and had become interested in the organization and operation of, railroads, banks, and other commercial institutions. Many of these institutions were poorly managed, and either failed or became heavily involved, and, as a result, the state, counties, and cities interested in them







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became responsible for their debts and other obligations. These obligations fell ultimately on the taxpayers. Hence the amendment, the essence of which was to restrict the activities and functions of the state, county, and municipality to that of government, and forbid their engaging directly or indirectly in commercial enterprises for profit.



Id. at 120. Thus, as the language of the provision reflected, its purpose was to prohibit state and local governments from becoming stockholders in or loaning their credit to any corporation, association, institution, or individual and to "counter debauching the State's credit and the reckless speculation resulting therefrom." Brautigam, 64 So. 2d at 784. The provision was designed "to protect public monies" and "to keep the State out of private business; to insulate State funds against loans to individual corporations or associations and to withhold the State's credit from entanglement in private enterprise." Dade County, Bd. of Pub.


Instruction v. Mich. Mut. Liab. Co., 174 So. 2d 3, 5-6 (Fla. 1965).




Although the 1968 Florida Constitution added limiting constructions and exceptions to the broad prohibition contained in the 1885 Florida Constitution,5 the general language in the prohibition against public entities becoming joint owners












5. Subsections (a) through (d) provide that article VII, section 10 does not prohibit laws authorizing the investment of public trust funds, the investment of other public funds in obligations of the United States, the issuance of bonds to finance local airports or port facilities, the issuance of bonds for industrial or manufacturing plants if the interest is exempt from income taxes and bonds are payable solely from revenues therefrom, and the joint ownership with or pledge of taxing power or credit to any private entity for the ownership, construction, and operation of electrical energy generating or transmission facilities. Art. VII, § 10(a)-(d), Fla. Const. (amended 1974).







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with or pledging their credit to private entities was not substantially altered. Thus, like the 1885 provision before it, the 1968 prohibition "acts to protect public funds and resources from being exploited in assisting or promoting private ventures when the public would be at most only incidentally benefitted." Bannon v. Port of Palm Beach Dist., 246 So. 2d 737, 741 (Fla. 1971).



Prior Cases


The four cases where the challenged arrangements most closely resemble the agreement in this case are cases in which the challenged arrangement was a lease or temporary conveyance of land from a public entity to a private entity without the issuance of bonds.


First, in Bailey, this Court addressed whether a contract between the City of Tampa and the Tampa Board of Trade violated the constitutional prohibition in article IX, section 10 of the 1885 Florida Constitution. 111 So. at 119. In the challenged contract, the city agreed to convey a parcel of land to the board. Id.


The board agreed to erect a building on the land within three years of entering into the contract. Id. The building's plan had to be approved by the city, and if the building was not constructed within three years, the board had to reconvey the property to the city upon demand. Id. The board agreed to pay the entire expense and cost of the building, a portion of which was to be turned over for the city's use at the time of completion. Id. at 119-20. Furthermore, the board agreed to







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reconvey the land and improvements to the city within thirty-five years, free from any lien or indebtedness, upon the retiring of bonds, notes, or mortgages. Id. at




119. The board would retain the right to use the land and improvements as was necessary to carry out its purpose and consistent with the public interest. Id. This Court determined that this contract did not violate the constitutional prohibition, reasoning that the contract "reveals no authorization on the part of the city of Tampa to become a stockholder in the Tampa board of trade, or to obtain or appropriate money for it, or to loan it or any other corporation, association, institution, or individual its credit." Id. at 120. We explained that whether the contract was wise as a matter of policy was in the discretion of the city's officers and electors to determine. Id.


Second, in Raney v. City of Lakeland, 88 So. 2d 148 (Fla. 1956), this Court addressed whether a ninety-nine-year lease of publicly-owned land by a municipality to a nonprofit corporation violated article IX, section 10 of the 1885 Florida Constitution. Id. at 149-50. In the challenged arrangement, the City of Lakeland agreed to lease land to the Garden Club of Lakeland, Inc., for an annual rental of $1 and other considerations. Id. at 149. The land had been originally purchased by the city some years earlier for off-street parking of motor vehicles, but it had never been used to any extent. Id. The lease provided that the club could not use the land for private gain and that the club would establish and







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maintain a public library on horticulture and maintain a service for the dissemination of educational information on horticulture for the benefit of the public. Id. The club agreed to construct, at its expense, a building for the library within two years of entering into the lease. Id. The lease included clauses protecting the city with public liability insurance, covenants against assignment and subletting, and cancellation upon breach of any covenant. Id. The improvements would revert to the city with the land at the end of the lease term.


Id. The lease also stated that the city did not have a present or anticipated need for the land and that it was executed to permit enlargement of the program and facilities of the club for furtherance of its work in behalf of the general welfare. Id. at 150. This Court found that the lease was valid. Id. We noted that "the beautification of a modern city by extensive and well-conceived planting of trees, flowers and shrubs is a proper function of municipal government." Id. at 151.


This Court also observed that the club was not a private corporation for profit and that "[i]f it were, [the] lease could not stand." Id. We further noted that as in Bailey, the lease at issue imposed no obligation on the city. Id. We ultimately determined that the lease served a useful public purpose at no profit to the club. Id. at 152.


Third, in Bannon, this Court addressed whether a long-term lease and development plan between the Port of Palm Beach District and Peanut Island







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Properties, Inc., violated, among other provisions, article VII, section 10 of the 1968 Florida Constitution. 246 So. 2d at 738. The land at issue was an artificial island, purchased by the port district decades earlier, which had been used primarily as an undeveloped recreation facility, a public landing, and anchorage.


Id. at 738-39. Although this Court did not discuss the details of the agreement, we framed the question presented as


whether or not the leasing of the property to a private concern for development at private expense violates the constitutional and statutory prohibition against the lending of the credit of the State for a private purpose, or whether or not the overall plan is prohibited by the organic law of the State.


Id. at 740. This Court noted that it was not faced with a financing scheme involving the issuance of revenue bonds or another form of public financing for the construction of a facility for a private concern's exclusive use and that "[n]o bonded indebtedness or monetary obligation of any kind attached to the Port District as a result of the lease." Id. We also observed that through the lease agreement, the district "did not become a joint owner or stockholder of the private tenant, nor did it lend, obligate or in any manner encumber its credit to the advantage of the tenant." Id. at 740-41. This Court explained, "The District's participation in the transaction is limited to that of a lessor and does not involve any responsibility for the financing, promotion or development of the proposed project." Id. at 741. We held that neither the spirit nor the letter of the







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constitutional prohibition was violated, observing that "the District has no financial responsibility and if all failed for the corporate tenant, the District would not bear any responsibility or obligation to the creditors nor would its ownership of the land be committed for such" and that "[the District's] interest and credit remain free from attachment." Id. This Court also explained that it did not find it necessary to determine whether the development of the leased property served a primarily public or private purpose. Id. at 740. We noted that the district was exercising a power conferred to it by the Port Facilities Financing Law (chapter 315, Florida Statutes), which provided in pertinent part that the powers conferred by it and the exercise of those powers were proper public and municipal purposes. Id. (citing §




315.14, Fla. Stat.). Fourth, in City of West Palm Beach v. Williams, 291 So. 2d 572 (Fla. 1974), this Court addressed whether a lease between the City of West Palm Beach and West Palm Beach Marina, Inc., a private corporation, violated article VII, section 10 of the 1968 Florida Constitution. Id. at 574-76. The agreement concerned property owned by the city which had been used in a proprietary capacity and consisted of a marina, gasoline service station, restaurant, and metered parking lot.


Id. at 574. Although we did not describe the details of the lease agreement, we framed the issue presented as "whether municipalities can lease public lands for private uses when the lease is not coupled with the issuance of bonds or with the







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acquisition of land by purchase or eminent domain." Id. at 576. This Court explained the principles governing the resolution of the issue:


Because the constitution requires that bonds be issued, public funds be spent and the power of eminent domain be exercised for public uses only, any lease agreement which requires that one of the above powers be exercised for a private use would necessarily be void. However, when none of the above powers need be exercised in order to proceed to the complete execution of the lease agreement, municipalities, when holding the legislative authority to do so, can lease public land for private uses.


Id. (citing Bannon, 246 So. 2d 737). We found that the city had both the general statutory authority and specific authority in its charter to lease the property. Id. at




577. This Court also noted that through the statutes providing general legislative authority to municipalities, the Legislature had determined that the lease of public lands for private purposes was a valid public purpose. Id. at 578. We further opined, "In fact, it would be beneficial in many instances to lease surplus public property for non-public purposes so that the citizens and taxpayers would realize some tax relief resulting from the income." Id. This Court ultimately found the lease agreement to be lawful and concluded that "where bonds are not issued, public funds are not spent, and the power of eminent domain is not exercised in furtherance thereof, a municipality can lease public land for private uses in accordance with legislative authority." Id.



In sum, in prior cases we have analyzed whether a lease or temporary conveyance of land from a public entity to a private entity violates article VII,







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section 10 of the 1968 Florida Constitution and the provision that immediately preceded it, article IX, section 10 of the 1885 Florida Constitution. However, as discussed below, in prior cases we did not determine the constitutionality of an agreement quite like the one challenged in this case.


Joint Ownership


The first question certified by the Eleventh Circuit asks whether the JAA is a joint owner with Majestic, thereby violating article VII, section 10 of the Florida Constitution. Jackson-Shaw II, 508 F.3d at 658. Jackson-Shaw contends that the agreement violates the prohibition against joint ownership because it requires a public body to invest public resources in a private development in exchange for revenue that depends largely on the financial success of the private company managing the development. Although Jackson-Shaw rejects the district court's reliance on the common law test for joint ventures, Jackson-Shaw also argues that to the extent the elements of a joint venture are relevant to the constitutional prohibition on joint ownership, those elements are met. In contrast, the JAA suggests that the common legal principles of partnerships and joint ventures are relevant to the definition of joint ownership and that the JAA is neither a partner nor a joint venturer under the agreement.



The district court determined that the agreement in the instant case did not violate the constitutional prohibition against joint ownership by ascertaining that it
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