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MICHAEL VAN SICKLER and TOM ZUCCOClear Channel says its Ford Amphitheatre is an extension of the state, so local laws don't apply. A judge considers the claim today.
TAMPA - When 50 Cent raps about pimpin' and AK-47s, and when Toby Keith rouses a crowd with drinking songs, are they performing a governmental purpose?
Clear Channel Entertainment, owner of the $23-million Ford Amphitheatre, claims they are. The Texas-based company says its lease with the Florida State Fair Authority means Clear Channel, a private company, and the Fair Authority, a state agency, have the same rights.
Because of that link to the state, Clear Channel says it should have immunity from local noise laws.
And more. Clear Channel also says it should not be required to pay county property taxes.
Today in Hillsborough Circuit Court, Judge Charlene Honeywell will consider whether the music industry giant qualifies for "sovereign immunity," a legal distinction that normally shields governments, not Fortune 500 companies, from local regulation and liability.
Sovereign immunity could free Clear Channel from the county's noise ordinance.
Environmental officials say the Ford Amphitheatre has violated noise regulations repeatedly since it opened last July at the Florida State Fairgrounds in eastern Hillsborough. Lawsuits seeking to make Clear Channel and the Fair Authority comply with county noise laws have been filed by the Hillsborough Environmental Protection Commission and two residents who live near the amphitheater.
But Clear Channel - a company that owns 41 amphitheaters and about 1,200 radio stations and reported 2004 revenues of $9.4-billion - has more than noise riding on its legal arguments.
Money is at stake.
Convincing judges that it serves the public could save the entertainment giant plenty.
In a separate lawsuit filed in December, Clear Channel and the State Fair Authority sued Hillsborough County Property Appraiser Rob Turner, seeking to avoid paying $305,000 in county property taxes on the amphitheater.
In the property tax lawsuit, Clear Channel argues that as part of the Fair Authority, Ford Amphitheatre concerts "constitute essential governmental purposes."
The Fair Authority, the suit argues, and by extension the amphitheater, has been charged by the state to "advance the educational, physical, economic and cultural interests of the public."
Turner isn't ready to make that connection. He sees the amphitheater as a privatel y owned business that should be on tax rolls, not too different from a restaurant at Tampa International Airport . His office denied Clear Channel's original request for immunity from property taxes.
"We're clear that case law and the statutes here in Florida do not provide them immunity as a private, for-profit entity," Turner said.
As examples, Turner cited the businesses leasing space at the Port of Tampa, as well as a truck-driving school near the amphitheater on Fair Authority land, that aren't getting property tax immunity.
If Judge Honeywell grants Clear Channel sovereign immunity , Turner said the ruling should have no effect on the pending tax exemption suit.
"We see a clear distinction and separation of those issues," Turner said.
But Clear Channel and Fair Authority officials say the two issue s are entwined, if not legally, then philosophically.
In court filings in both the sovereign immunity and the tax case, Clear Channel makes the same argument: that concerts it puts on at the fairgrounds fall under the heading of "essential governmental purposes."
The Legislature created the Fair Authority partly on the premise that the agency would organize concerts. The grounds are overseen by a 21-member Fair Authority appointed by state Agriculture Commissioner Charles Bronson, who also sits on the board.
"Throughout each year," its charter states, "the authority shall ... provide facilities for public gatherings, cultural activities, and other functions."
That paragraph allows the Fair Authority to book lucrative acts such as Avril Lavigne and Lil Jon, along with the standard livestock exhibitions and 4-H Club fare.
But it also gave Clear Channel ammunition for the lawsuit against the property appraiser - evidence that it served the common good.
When the board leased the amphitheater land to Clear Channel in 2003 for $275,000 a year, that was an admission that the nation's largest concert promoter could do a better job luring top acts than the board, said Charles Pesano, the executive director of the Florida State Fair Authority.
"We put on many concerts in the past, that was a vital part of what we did," Pesano said. "But the board believed it made more sense for a third party like Clear Channel to build an amphitheater themselves and take on the risk of a promoter."
However, since the 20,000-seat amphitheater opened last summer, it has been a constant headache for many of the residents of a nearby neighborhood off Interstate 4.
As the agency that enforces the noise ordinance, the county's Environmental Protection Commission has fielded hundreds of complaints. EPC officials measured noise from concerts and said the volume exceeded legal limits.
Clear Channel attorneys say the ordinance is too vague to enforce and that the few complaining residents have exaggerated the noise.
The EPC sued Clear Channel and the Fair Authority in January to halt concerts until steps were taken to lower the volume. EPC officials later claimed that Clear Channel didn't build the amphitheater as promised; the roof was 40 percent higher than the approved design, generating more noise than was projected.
Two neighbors of the amphitheater also filed suit.
On July 11, Honeywell said that the Fair Authority was an extension of the state, and therefore, outside the reach of local laws. What she did not rule was whether Clear Channel, as a Fair Authority tenant, qualified for that same immunity.
If she grants Clear Channel that immunity, she still could decide to waive the privilege because it causes too great a nuisance.
It's unclear what the ramifications would be if Clear Channel is deemed to be above local law. Hundreds of other tenants lease land from other authorities, such as the Tampa Port Authority, the Hillsborough County Aviation Authority, which oversees Tampa International Airport, and the Tampa Sports Authority.
"I doubt very seriously any of this would affect our tenants," said Louis Miller, Tampa International's director. "We want to comply with local regulations. We want to be treated fairly and equitably."
At the Port of Tampa, about 80 companies lease property, but only one qualifies for immunity, said Charles Klug, the Port Authority's legal counsel.
Tampa Bay International Terminals is a nonprofit corporation that the authority created to maintain port operations, Klug said.
"We control it," Klug said. "That's the distinction that I would highlight. A private corporation that we have no control over, I would presume, wouldn't get that sovereign immunity."
That distinction is critical, said Tim McLendon, the attorney for the Center for Governmental Responsibility at the University of Florida College of Law.
"Traditionally, courts distinguish between a governmental operation and a proprietary function," McLendon said. "Sovereign immunity doesn't extend to a year-round, profitmaking private corporation like Clear Channel. I don't think they would be immune from taxes either."
But the public good the concert venue performs shouldn't be overlooked, Pesano said.
"The intent of the Fair Authority is that we would provide a facility and grounds that would provide concerts for the citizens of this state," Pesano said. "This is what Clear Channel does. We've tried sitting down with the EPC to settle this. We're not the bad guys."
--Times staff writer Jeff Testerman contributed to this report.