L. LOWRY BALDWIN v. BOB HENRIQUEZ, AS PROPERTY APPRAISER

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT

L. LOWRY BALDWIN and JENNIFER )
L. BALDWIN, )
)
Appellants, )
)
v. ) Case No. 2D18-2658
)
BOB HENRIQUEZ, as Property )
Appraiser of Hillsborough County; )
DOUG BELDEN, as Tax Collector of )
Hillsborough County; and LEON M. )
BIEGALSKI, Executive Director of the )
Department of Revenue, )
)
Appellees. )
___________________________________)

Opinion filed September 13, 2019.

Appeal from the Circuit Court for
Hillsborough County; E. Lamar Battles,
Judge.

Marie A. Borland and Robert E. V. Kelley,
Jr. of Hill, Ward & Henderson, P.A., Tampa,
for Appellants.

William D. Shepherd of Hillsborough
County Property Appraiser's Office, Tampa,
for Appellee Bob Henriquez.

Ashely Moody, Attorney General,
Tallahassee, and Robert P. Elson, Senior
Assistant Attorney General, Tallahassee,
for Appellee Leon Biegalski.
No appearance for Appellee Doug Belden.

BADALAMENTI, Judge.

L. Lowry Baldwin and Jennifer L. Baldwin appeal from a final summary

judgment in favor of Bob Henriquez, as Property Appraiser for Hillsborough County,

Doug Belden, as Tax Collector, and Leon M. Biegalski, as Executive Director of the

Department of Revenue, on all three counts of the Baldwins' amended complaint. In

their complaint the Baldwins challenged, among other things, the Property Appraiser's

denial of a homestead exemption on their residential property for tax year 2015. We

hold that the Baldwins are not entitled to a homestead exemption for their residential

property for tax year 2015 because they failed to maintain the subject property as their

permanent residence on January 1, 2015.1

Factual Background

The undisputed facts are as follows: In July 2013, the Baldwins sold their

residence and abandoned their homestead. On July 10, 2013, the Baldwins purchased

another property with a house on it. They did not move into that house. Instead, in

November 2013, the Baldwins demolished the existing house on the property and

began construction on a new house on the property.2 During the construction of the

new house, the Baldwins resided at a leased condominium unit and rented a storage

unit for their furniture and personal items. They were able to use the dock on the

1We affirm the remaining issue without comment.
2Priorto demolishing the house on the property, Jennifer Baldwin held one
book club meeting in that house.

-2-
premises of the subject property while their new house was being constructed. When it

became obvious that the construction would not be completed by the end of 2014, the

Baldwins pitched a tent on the subject property on December 26, 2014, and spent the

night on the subject property. Jennifer Baldwin spent one additional night in the tent

later that week. As of January 1, 2015, the Baldwins' driver's licenses and voter

registration cards reflected the address of the subject property where the new house

was being constructed. The new house received a temporary Certificate of Occupancy

on June 9, 2015, and the Baldwins moved into their new home on June 11, 2015.

Finally, on January 8, 2016, the new house received a final Certificate of Occupancy.

The Baldwins timely applied for homestead exemption and transfer of

homestead assessment difference (the Save Our Homes portability benefit) for their

new property for tax year 2015. They received a notice of disapproval from the Property

Appraiser informing them that their application was denied because the subject property

was not the Baldwins' permanent residence as of January 1, 2015. Next, the Baldwins

petitioned to the Value Adjustment Board (VAB) seeking a reversal of the Property

Appraiser's denial. The VAB agreed with the Property Appraiser and denied their

petition. Finally, the Baldwins filed a complaint in the circuit court seeking a declaration

that they were entitled to claim homestead exemption for property tax purposes for tax

year 2015. They also sought a declaration that they were entitled to a transfer of the

Save Our Homes portability benefit.

The parties filed competing motions for summary judgment. The Baldwins

argued that their inability to physically occupy the premises as of January 1, 2015, was

not determinative of their ability to claim the property as homestead because they

-3-
manifested an intent to use the property as their permanent residence. The Property

Appraiser, conversely, argued that initial physical occupancy of the homestead property

by the taxpayer or a dependent of the taxpayer was required to secure a homestead tax

exemption.

The trial court found that initial physical occupancy is not required to

establish entitlement to a homestead exemption from ad valorem taxes. Instead, the

trial court explained, "it is one factor to consider in conjunction with several others when

determining whether an applicant has established a permanent residence at the

property for which he seeks the exemption." It further explained that "the determination

of permanent residency is not based on the parties' intent alone." The trial court

recognized that although the Baldwins undoubtedly intended for the subject property to

become their permanent residence at some point in the future, the Baldwins had not yet

made the subject property their permanent residence as of January 1, 2015. Ultimately,

the trial court found "insufficient indicia of permanent residence at the subject property

at the time of assessment to support a homestead exemption." The Baldwins timely

appealed.

Because the facts were not in dispute and the issue before the trial court

was purely legal, we review the court's entry of summary judgment de novo.

Karayiannakis v. Nikolits, 23 So. 3d 844, 845 (Fla. 4th DCA 2009).

Florida's Homestead Exemption

-4-
 The Florida Constitution defines and protects homestead in three different

ways.3 Chames v. DeMayo, 972 So. 2d 850, 853 (Fla. 2007). First, the constitution

provides homesteads with a tax exemption (article VII, section 6). Id. Second, the

constitution protects the homestead from forced sale by creditors (article X, section

4(a)). Id. Third, the constitution restricts the homestead owner's ability to alienate or

devise the homestead property (article X, section 4(c)). Id.

The constitutional provision providing for a tax exemption for homestead

property is found in article VII of the Florida Constitution. It provides a $25,000 tax

exemption for property on which the owner maintains his or her permanent residence.

Art. VII, § 6(a), Fla. Const. A separate constitutional provision, known as the "Save Our

Homes" amendment, provides that the annual change in property tax assessments on

homestead exempt property is limited to three percent of the prior year's assessment.

See art. VII, § 4(d)(1)(a), Fla. Const.; Zingale v. Powell, 885 So. 2d 277, 279 (Fla.

2004). A homeowner may transfer the benefit accrued under the Save Our Homes

constitutional amendment (also referred to as the homestead assessment difference) to

3Because the homestead provisions found in article VII and article X of the
Florida Constitution are separate and distinct, the "principles relating to one do not
necessarily govern the other." Crain v. Putnam, 687 So. 2d 1325, 1326 (Fla. 4th DCA
1997); see also Phillips v. Hirshon, 958 So. 2d 425, 427 n.3 (Fla. 3d DCA 2007) ("It is
well appreciated in the case law concerning homestead that the definition of homestead
property for Article VII, section 6 purposes is not the same as Article X, section 4 of the
Florida Constitution."). Indeed, while the protections afforded by the homestead
exemption in article X are liberally construed, see Taylor v. Maness, 941 So. 2d 559,
562 (Fla. 3d DCA 2006), the homestead exemption in article VII is strictly construed
against the taxpayer, see Grisolia v. Pfeffer, 77 So. 3d 732, 736 (Fla. 3d DCA 2011)
("The strict construction applicable to the Tax Exemption stands in contrast to the liberal
construction of the homestead exemption from forced sale at issue here."); see also
DeQuervain v. Desguin, 927 So. 2d 232, 236 (Fla. 2d DCA 2006) ("[B]ecause the
homestead exemption provides relief from an ad valorem tax, we must construe the
statute strictly against [the taxpayer].").

-5-
a new homestead established within two years of abandonment of the prior homestead.

See Nikolits v. Neff, 184 So. 3d 538, 539 (Fla. 4th DCA 2015) (citing art VII., § 4(d)(8),

Fla. Const.).

There is no self-executing right to the "Save Our Homes" three percent tax

cap. Haddock v. Carmody, 1 So. 3d 1133, 1136 (Fla. 1st DCA 2009) (citing Zingale,

885 So. 2d at 284-85). "Taxpayer eligibility for the Save Our Homes tax limitation is

based on entitlement to the homestead exemption under Article VII, section 6." Id. "[A]

successful application for a homestead application is necessary both to obtain the

exemption and to qualify for the cap." Id. (quoting Zingale, 885 So. 2d at 285). Here,

because the Baldwins abandoned their prior homestead in 2013, they had to establish a

new homestead within two years—by 2015—to transfer the property tax benefit they

accrued under the Save Our Homes amendment. In other words, a determination of the

Baldwins' entitlement to a homestead exemption for tax year 2015 also determines their

ability to transfer the Save Our Homes portability benefit.

Discussion

On appeal, the Baldwins argue that the trial court misapplied the law by

focusing too heavily on their lack of physical occupancy of the subject property. They

maintain that they are entitled to a homestead exemption for their property even though

they were unable to physically occupy the subject property as of January 1, 2015,

because they manifested an intent to establish a permanent residence on the subject

property and did specific acts in furtherance of this intent. Specifically, they assert that

they manifested their intent to establish residence on the subject property by changing

their licenses and voter registration cards and abandoning their prior homestead. In

-6-
support, they rely heavily on our supreme court's decision in Semple v. Semple, 89 So.

638 (Fla. 1921). There, our supreme court explained that

[w]here it is clearly the manifest intention of the owner to
occupy the premises immediately as a home, and this
intention is evidenced by specific acts and doings that are
not compatible with a different intention, and there is nothing
done by the claimant showing a different intention, or that is
inconsistent with the asserted intention to make the place his
homestead, the homestead character will attach.

Id. at 639. Finally, they emphasize Florida's public policy in favor of preserving the

homestead and assert that denying them a homestead exemption under these facts

undermines that policy.4

At the heart of this case is a taxpayer's entitlement to an ad valorem

exemption from property taxes, which emanates from the Florida Constitution.

Therefore, "[w]e are called on to construe the terms [of] the people, and we are to

effectuate from the people, and we are to effectuate their purpose from the words

employed in the document." Ervin v. Collins, 85 So. 2d 852, 855 (Fla. 1956). In so

doing, "[w]e are obligated to give effect to [the] language [of a constitutional

amendment] according to its meaning and what the people must have understood it to

mean when they approved it." Benjamin v. Tandem Healthcare, Inc., 998 So. 2d 566,

570 (Fla. 2008) (second and third alterations in original) (quoting City of St. Petersburg

4"The public policy furthered by a homestead exemption is to 'promote the
stability and welfare of the state by securing to the householder a home, so that the
homeowner and his or her heirs may live beyond the reach of financial misfortune and
the demands of creditors who have given credit under such law.' " Chames, 972 So. 2d
at 853-54 (quoting McKean v. Warburton, 919 So. 2d 341, 344 (Fla. 2005)). "Those
aspects of homestead directed at property taxation provide financial relief for owners of
property who qualify for homestead status." Kelly v. Spain, 160 So. 3d 78, 82 (Fla. 4th
DCA 2015).

-7-
v. Briley, Wild & Assocs., 239 So. 2d 817, 822 (Fla. 1970)). As such, we begin with an

analysis of the plain language of the applicable constitutional provisions. Id.; see

Endsley v. Broward County, 189 So. 3d 938, 941 (Fla. 4th DCA 2016) ("When

construing a statute or constitutional provision, we should first look to the plain meaning

of the words used."). When the language of the constitutional provision is clear and

unambiguous and conveys a clear and definite meaning, the constitutional provision

must be given its plain and obvious meaning. Endsley, 189 So. 3d at 941.

With these fundamental principles in mind, we now examine the applicable

constitutional provisions. First, the Florida Constitution provides that [e]very person who

has the legal or equitable title to real estate and maintains thereon the permanent

residence of the owner, or another legally or naturally dependent upon the owner, shall

be exempt from taxation thereon . . . upon establishment of right thereto in the manner

prescribed by law. Art. VII, § 6(a), Fla. Const. (emphasis added). Here, the Baldwins

owned legal title to the real estate for which they are claiming an exemption. They are

accordingly entitled to an exemption if they "maintain[ed] thereon" their "permanent

residence."

We first address what it means to "maintain" the permanent residence of

the owner. Because the word "maintain" is not defined in the constitution or the statutes

implementing the provision, we find it instructive, but not necessarily dispositive, to

consult dictionary definitions to discern its plain and ordinary meaning. See Jefferson v.

State, 264 So. 3d 1019, 1026 (Fla. 2d DCA 2018). "[M]aintain" is defined as "[t]o

continue in possession of (property, etc.)," and "[t]o care for (property) for purposes of

operational productivity or appearance; to engage in general repair and upkeep."

-8-
Maintain, Black's Law Dictionary (10th ed. 2014); see also The American Heritage

Dictionary, 1058 (10th ed. 2014) (defining "maintain" as "[t]o keep in an existing state;

preserve or retain" and "[t]o keep in a condition of good repair or efficiency").

Obviously, the thing which one "preserves" or "continue[s] in possession of"—the

residence—must already be in existence before it can be maintained. One cannot keep

"in a condition of good repair" a residence that has not yet been constructed. In other

words, the plain and ordinary language of our constitution leads us to the inescapable

conclusion that a taxpayer cannot "maintain" or "continue in possession of" his or her

"residence" until the property that he or she is "maintaining" actually constitutes the

taxpayer's "residence." Here, the Baldwins never maintained their residence on the

subject property until the new structure was completed in June 2015.

Next, we turn to the plain and ordinary meaning of the constitutional

phrase "permanent residence." Although the Florida Legislature has defined

"permanent residence" in the statutes implementing this constitutional provision, see

§ 196.012(17), Fla. Stat. (2014), we examine the text of this self-executing constitutional

provision to discern its plain and ordinary meaning, see Zingale, 885 So. 2d at 282

("Any inquiry into the proper interpretation of a constitutional provision must begin with

an examination of that provision's explicit language." (quoting Caribbean Conservation

Corp. v. Fla. Fish & Wildlife Conservation Comm'n, 838 So. 2d 492, 501 (Fla. 2003)));

see also Fla. Dep't of Rev. v. City of Gainesville, 918 So. 2d 250, 257 (Fla. 2005) ("[T]he

-9-
statutory definition does not control the construction of the term 'municipal or public

purposes' in the constitutional provision.").5

"Residence" is defined in part as "bodily presence as an inhabitant in a

given place." Residence, Black's Law Dictionary (10th ed. 2014) (emphasis added);

see also The American Heritage Dictionary, 1493 (10th ed. 2014) (defining "residence"

as "[t]he place in which one lives; a dwelling"). Thus, the plain and ordinary

understanding of the word "residence" means "a dwelling" in which one has "bodily

presence as an inhabitant." A not-yet-completed structure that has never been

physically occupied by the owner does not fit within this plain and ordinary

understanding of the term "residence." There is one modifier of the term "residence" in

the provision—the residence must be the taxpayer's "permanent" residence.

"Permanent" is defined as "[n]ot expected to change in status, condition, or place."

Permanent, The American Heritage Dictionary, 1314 (10th ed. 2014). Therefore, the

structure that the taxpayer inhabits must not change in "status" as the taxpayer's home.

Here, before the residence for which the Baldwins are claiming an exemption can

become the Baldwins' "permanent residence," the Baldwins must physically live in a

dwelling on the property. However, the Baldwins did not physically live in a dwelling on

the subject property until June 11, 2015.

5Although instructive, we are not bound by the definition of "permanent
residence" provided by the legislature. This is because article VII, section 6(a) is self-
executing, and as such, we do not need the legislature's aid to discern its meaning.
See Gray v. Bryant, 125 So. 2d 846, 851 (Fla. 1960) (defining a self-executing provision
of the Florida Constitution as one which "lays down a sufficient rule by means of which
the right . . . may be determined, enjoyed or protected without the aid of legislative
enactment"); see also Gainesville, 918 So. 2d at 257 (explaining that the supreme court
is not bound by the legislature's definition of a self-executing constitutional provision).

- 10 -
 Further, though not dispositive in our analysis of this self-executing

constitutional provision, the Florida Legislature defines "permanent residence" as

that place where a person has his or her true, fixed, and
permanent home and principal establishment to which,
whenever absent, he or she has the intention of returning. A
person may have only one permanent residence at a time;
and, once a permanent residence is established in a foreign
state or country, it is presumed to continue until the person
shows that a change has occurred.

§ 196.012(17); see also Karayianakis, 23 So. 3d at 846 ("The Florida Legislature's

construction of these constitutional provisions guides our analysis."). This definition is

consistent with the plain and ordinary understanding of the phrase as it is used in the

constitutional provision passed by the people of our state. The legislature's use of the

word "establishment," again, suggests a dwelling that the homeowner physically

occupies. See The American Heritage Dictionary, 608 (10th ed. 2014) (defining

"establishment" as "[a] place of residence or business with its possessions and staff").

Because taxpayers may reside in multiple structures, the definition explains that the

residence must be "permanent" in that it is the place that the taxpayer "has the intention

of returning" "whenever absent." § 196.012(17).

Accordingly, based on the plain and ordinary meaning of the constitutional

provision providing the homestead exemption, to "maintain" "the permanent residence"

on a piece of property, a taxpayer must preserve and continue in possession of a

dwelling that the taxpayer physically occupies as a home and intends to return to

whenever absent. Based on the plain and ordinary meaning of the operative

constitutional provision, we are compelled to hold that the Baldwins are not entitled to a

homestead exemption for their residential property for tax year 2015 because they did

- 11 -
not maintain their permanent residence on the property until June 11, 2015, the date

that they moved onto the subject property and the first time they physically occupied a

house on that property. Cf. Dep't of Rev. v. Pelsey, 779 So. 2d 629, 632 (Fla. 1st DCA

2001) ("[A]ctual occupancy is essential to a homestead claim."). Because they are not

entitled to a homestead exemption for tax year 2015, they are also not entitled to a

transfer of the homestead assessment difference.

This conclusion is not contradicted by the supreme court's holding in

Semple or Florida's public policy of preserving the home. In Semple, the supreme court

emphasized that the homestead character will attach to property where the owner

manifests an intention to "occupy the premises immediately as a home." 89 So. at 639

(emphasis added). In emphasizing the intent aspect of the Semple court's holding, the

Baldwins ignored the temporal component. The Baldwins clearly intended to occupy

the premises as a home, but only at some undeterminable point in the future after

construction was completed. Because the Baldwins did not use or occupy the property

as a home until six months into the year for which they were claiming the exemption,

they did not manifest an intent to "occupy the premises immediately as a home." Id. at

639 (concluding that homestead character did not attach to property where the property

was not "in the actual use and occupancy" of the person claiming homestead exemption

until "two months after" the date on which the property was conveyed by deed); cf.

§ 196.031(1)(a) ("A person who, on January 1, has the legal title or beneficial title in

equity to real property in this state and who in good faith makes the property his or her

permanent residence . . . is entitled to an exemption from all taxation . . . ." (emphasis

added)); see also Clements v. Farhood, No. 5:17CV213-RH/GRJ, 2018 WL 850086, at

- 12 -
*2 (N.D. Fla. Feb. 12, 2018) ("[Semple] is still cited from time to time, but never for the

proposition that a lot without a livable residence can be homestead if only the owner

intends to build a house and live there at some point in the future.").

As for the Baldwins' reliance on Florida's public policy to protect the home,

the Florida Constitution "[d]oes not establish an absolute right to a homestead

exemption." Horne v. Markham, 288 So. 2d 196, 199 (Fla. 1973). Indeed, the

constitutional provision affords the right only to those who establish the right "in the

manner prescribed by law." Art. VII, § 6(a), Fla. Const. Further, this policy is less

compelling in the context of providing a homeowner an exemption from taxes than in the

context of protecting a homeowner from a forced sale of his or her property. See S.

Walls, Inc. v. Stilwell Corp., 810 So. 2d 566, 571 (Fla. 5th DCA 2002) ("The public policy

underlying the homestead exemption from forced sale is clearly more compelling than

the public policy underlying the tax exemption. The homestead exemption should

ensure more protection from forced sale than it receives from the tax exemption."

(quoting In re Dean, 177 B.R. 727, 730 (Bankr. S.D. Fla. 1995))). Finally, where we can

discern the constitutional provision's plain, ordinary, and unambiguous meaning, we

cannot modify the will of the people in their passage of the constitutional provision

based on policy considerations. Cf. McDonald v. Ronald, 65 So. 2d 12, 14 (Fla. 1953)

("Where the legislature's intention is clearly discernible, the court's duty is to declare it

as it finds it, and it may not modify it or shade it, out of any consideration of policy or

regard for untoward consequences.").

We stress that our holding today is limited to the facts of this case. See

§ 196.015 ("Intention to establish a permanent residence in this state is a factual

- 13 -
determination to be made, in the first instance, by the property appraiser."). We

sympathize with the Baldwins' loss of the homestead portability benefit due to

circumstances largely beyond their control. This court is mindful of the financial

implications of this decision to the Baldwin family. The text of our constitution passed

by the people of our state, however, compels this decision.

In summary, because the Baldwins did not maintain the subject property

as their permanent residence on January 1, 2015, they are not entitled to a homestead

tax exemption on the property for tax year 2015. Because they do not qualify for the

homestead exemption, they also are not entitled to a transfer of their homestead

portability benefit. We affirm the trial court's grant of final summary judgment in favor of

the Property Appraiser.

Affirmed.

LaROSE, J., Concurs.
CASANUEVA, J., Concurs with opinion.

- 14 -
CASANUEVA, Judge, Concurring.

I fully concur with the court's opinion. I write only as a point of caution for

those who may be impacted by this decision directly or indirectly, including building

contractors, property owners, and practitioners representing them, who may wish to

address in their contracts the potential impact of a construction delay on the Save Our

Homes benefit.

This case illustrates an issue that may result from an extended

construction period where a homeowner decides, often for economic reasons, to sell

one homestead property prior to constructing or remodeling a new homestead

residence. In this case, that extended construction period prevented the Baldwins from

transferring the Save Our Homes benefit to their new home, despite their continued

intent to establish it as their homestead.

One would be hard pressed to list all possible points of construction delay

that could occur between permitting and a certificate of occupancy. As one example,

our state, being a peninsula surrounded by the Atlantic Ocean and the Gulf of Mexico, is

often the site of hurricane landfalls. Floridians know that a shortage of building supplies

can result from multiple hurricane landfalls. In 2004, our state was buffeted by several

hurricanes, and construction was severely impacted. An aerial view of our state

demonstrated the proliferation of roof tarps of differing hues.

Interruptions causing construction to extend beyond the anticipated

completion date can and do occur.6 Understanding this reality, builders and

6The Baldwins' affidavits state that their agreement with the builder
contained a requirement that a certificate of occupancy be issued by December 22,

- 15 -
practitioners may be wise to consider this eventuality in the construction contract, where

the risk of loss can be addressed, particularly keeping in mind the potential loss of a

taxpayer benefit.

2014, but it became evident in the Fall of 2014 that the new house would not be
completed by the end of 2014.

- 16 -