Growers prevail in court, saying a per-carton tax for advertising violates their freedom of speech.
By WILLIAM R. LEVESQUE
Published October 21, 2004
Florida citrus growers have paid a state tax since the 1930s to promote their product. Celebrities have been hired through the years to pitch citrus, from singer Anita Bryant to Bucs coach Jon Gruden.
Whether growers loved or hated the ads, or the celebrities, didn't matter. State law required them to pay the tax for every box of fruit grown.
On Wednesday, the 2nd District Court of Appeal ruled that growers cannot be forced to pay a tax to support a citrus promotion program they might not like. The court said the tax violates growers' free speech rights.
The court upheld a ruling by a Polk County circuit court judge who said the law allowing the tax that pays for the Florida Department of Citrus is unconstitutional.
The department, whose primary purpose is to promote the industry using money raised through the box tax and whose existence might be threatened by the outcome of the dispute, said it will appeal the decision to the Florida Supreme Court. In the meantime, the tax will continue to be assessed.
"It is our position that the box tax is constitutional and provides a direct benefit to the citrus industry," department executive director Dan Gunter said in a written statement. "Without the programs funded by the box tax, the multibillion-dollar Florida citrus industry and the 90,000 jobs it creates will be placed in serious jeopardy."
The Citrus Department, a Lakeland agency with about 75 employees, gets all but a few million dollars of its annual revenue from the tax. Its budget is about $56-million, though it has been as high as $70-million in recent years.
For the group of growers who sued to stop the tax, the state's advertising program does something taboo in citrus circles: It helps the enemy, Brazil.
Brazil, with more than twice Florida's production is the world's largest citrus grower, is the country from which Florida imports juice to cover what it cannot produce.
Since Florida cannot produce enough oranges to meet U.S. juice consumption, generic advertising that increases demand helps Brazil sell more juice, too, said Michael McMahon, an Orlando attorney representing the growers.
"The state's advertising is at least as effective selling Brazilian juice as Florida juice," McMahon said.
But even without the Brazil argument, he said, the state shouldn't be telling growers how their product should be promoted.
Some of the state's largest juice producers promote their own product, McMahon said.
"It's not the government's business to force all the people in an industry to speak with a single voice," McMahon said. "The Constitution is all about allowing people to speak their own mind."
Profit margins for citrus growers are notoriously thin, and he said a tax that varies by variety (for most round oranges, it's about 161/2 cents per box) threatens the finances of some growers.
The U.S. Supreme Court is reviewing a similar issue involving a beef industry group and the U.S. Department of Agriculture, so it is possible the high court will resolve the issue before the Florida Supreme Court.
Ken Keck, the department's general counsel, said it was premature to talk about the demise of the citrus agency. Even if it doesn't prevail in the litigation, Keck said he hoped state leaders would fund the department irrespective of the outcome.
"The vast majority of growers do support our programs," he said.
The growers who have sued include Graves Brothers Co., Evans Properties Inc., Southern Gardens Groves Corp., the Latt Maxcy Corp., Fellsmere JointVenture and the Barron Collier Partnership.
