         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                  _____________________________

                          No. 1D18-248
                  _____________________________

INTERNATIONAL ACADEMY OF
DESIGN, INC. and
INTERNATIONAL ACADEMY OF
MERCHANDISING AND DESIGN,
INC.,

    Appellants,

    v.

DEPARTMENT OF REVENUE,

    Appellee.
                  _____________________________


On appeal from a Final Order of the Department of Revenue.
Andrea Moreland, Deputy Executive Director.

                       December 31, 2018


KETCHEL, TERRANCE R., Associate Judge.

     The International Academy of Design, Inc. and The
International Academy of Merchandising and Design, Inc.
challenge a final order of the Department of Revenue determining
that they were not eligible for tax exemptions from 2010 to 2013
under section 212.0602, Florida Statutes (2010). For the reasons
set forth below, we affirm the final order of the Department of
Revenue.
     The tax exemption at issue here involves the interpretation of
and interplay between section 212.0602, Florida Statutes and
section 212.031(1)(a)9., Florida Statutes. Section 212.0602
provides certain tax exemptions for “any entity, institution, or
organization that is primarily engaged in teaching students to
perform any of the activities or services described in s.
212.031(1)(a)9.” 1 § 212.0602, Fla. Stat. (emphasis added). Section
212.031(1)(a)9. provides a separate tax exemption for “[p]roperty
used as an integral part of the performance of qualified production
services,” and goes on to define “qualified production services” as

    any activity or service performed directly in connection
    with the production of a qualified motion picture, as
    defined in s. 212.06(1)(b), and includes:

    a. Photography, sound and recording, casting, location
    managing and scouting, shooting, creation of special and
    optical effects, animation, adaptation (language, media,
    electronic, or otherwise), technological modifications,
    computer graphics, set and stage support (such as
    electricians,    lighting   designers    and    operators,
    greensmen, prop managers and assistants, and grips),
    wardrobe (design, preparation, and management), hair
    and makeup (design, production, and application),
    performing (such as acting, dancing, and playing),
    designing and executing stunts, coaching, consulting,
    writing, scoring, composing, choreographing, script
    supervising, directing, producing, transmitting dailies,
    dubbing, mixing, editing, cutting, looping, printing,
    processing, duplicating, storing, and distributing;

    b. The design, planning, engineering, construction,
    alteration, repair, and maintenance of real or personal
    property including stages, sets, props, models, paintings,
    and facilities principally required for the performance of
    those services listed in sub-subparagraph a.; and



    1 The statute also has three other conditions, but they are not
at issue in this case.

                                2
    c. Property management services directly related to
    property used in connection with the services described
    in sub-subparagraphs a. and b.

§ 212.031(1)(a)9., Fla. Stat. A “qualified motion picture” is defined
in section 212.06(1)(b) as

    all or any part of a series of related images, either on film,
    tape, or other embodiment, including, but not limited to,
    all items comprising part of the original work and film-
    related products derived therefrom as well as duplicates
    and prints thereof and all sound recordings created to
    accompany a motion picture, which is produced, adapted,
    or altered for exploitation in, on, or through any medium
    or device and at any location, primarily for
    entertainment, commercial, industrial, or educational
    purposes.

§ 212.06(1)(b), Fla. Stat.

     When interpreting a statute, the polestar is legislative intent,
Bautista v. State, 863 So. 2d 1180, 1185 (Fla. 2003), and the
primary indicator of the legislature’s intent is the text of the
statute, Rollins v. Pizzarelli, 761 So. 2d 294, 297 (Fla. 2000). That
is to say, “[w]hen the language of the statute is clear and
unambiguous and conveys a clear and definite meaning, there is
no occasion for resorting to the rules of statutory interpretation
and construction.” Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984)
(quoting A.R. Douglass, Inc. v. McRainey, 137 So. 157, 159 (Fla.
1931)). “When considering the [plain] meaning of terms used in a
statute, this Court looks first to the terms’ ordinary definitions[,
which] . . . may be derived from dictionaries.” Debaun v. State, 213
So. 3d 747, 751 (Fla. 2017) (quoting Dudley v. State, 139 So. 3d 273,
279 (Fla. 2014)). Ambiguity exists where reasonable people can
find different meanings in the same language. Forsythe v.
Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 455
(Fla. 1992).

      The term “describe” as used in the statute can mean either
“list” or “define.” See Describe, Webster’s Third New Int’l
Dictionary (1971) (“to represent by words written or spoken for the
knowledge or understanding of others”); Describe, The Oxford
                                  3
English Dictionary (2d ed. 1989) (“1. To write down, set forth in
writing or in written words . . . . 2. To set forth in words, written
or spoken, by reference to qualities, recognizable features, or
characteristic marks; to give a detailed or graphic account of.”);
Describe, The American Heritage Dictionary of the English
Language (1982) (“To give a verbal account of; tell about in
detail.”). In other words, the definition of “describe” is broad
enough to encompass both parties’ interpretations.

      The Academies argue that when section 212.0602 refers to
those activities described in section 212.031(1)(a)9., it is referring
only to the list of activities in sub-subparagraphs a. and b. So
Appellants see the word “describe” as being synonymous with
“list.”

     The Department argues that when section 212.0602 refers to
those activities described in section 212.031(1)(a)9., it is referring
to all those activities listed in sub-subparagraphs a. and b. that are
“performed directly in connection with the production of a qualified
motion picture.” § 212.031(1)(a)9., Fla. Stat. In other words, it sees
the word “describe” as being synonymous with “define.”
Accordingly, section 212.0602 refers to those activities and services
defined in section 212.031(1)(a)9., not just listed therein.
Therefore, the Department argues that the statute does not
provide a tax exemption for an educational institution that is only
primarily engaged in teaching students photography, sound and
recording, creation of special effects, animation, wardrobe design,
hair and makeup, writing, scoring, composing, etc. See
§ 212.031(1)(a)9.a., Fla. Stat. It further requires that the
institution teach students to perform any of those activities or
services “directly in connection with the production of a qualified
motion picture.” § 212.031(1)(a)9., Fla. Stat.

     We find that both parties have presented us with reasonable
interpretations of the statute. At this point, we would normally
turn to the canons of statutory construction to wade through this
ambiguity; however, two principles of law compel us to affirm the
Department’s interpretation.




                                  4
     First, an administrative agency’s interpretation of a statute
that it is tasked with enforcing is entitled great deference. 2 See
Fla. Hosp. v. Agency for Health Care Admin., 823 So. 2d 844, 847
(Fla. 1st DCA 2002); Sans Souci v. Div. of Fla. Land Sales &
Condos., Dep’t of Bus. Reg., 421 So. 2d 623, 626 (Fla. 1st DCA 1982)
(giving deference to the Division’s interpretation of a condominium
statute because it has “special expertise” in that subject area). Said
differently, “if the agency’s interpretation is one of several
permissible interpretations, it must be upheld despite the
existence of reasonable alternatives.” Doyle v. Dep’t of Bus. Reg.,
794 So. 2d 686, 690 (Fla. 1st DCA 2001).

     Second, statutes providing exemptions from a general tax are
strictly construed against the tax payer. 3 State Dep’t of Rev. v.
Anderson, 403 So. 2d 397, 399 (Fla. 1981). Because tax exemptions
are strictly construed against the tax payer, we must utilize the
Department’s definition of “describe” as synonymous with “define.”
Therefore, the Academies must prove that their students
performed certain activities and services directly in connection
with the production of a qualified motion picture.

     The Academies alternatively argued that they satisfied the
requirement because their students created portfolios throughout
their degree program that constituted a qualified motion picture.
The facts do not support the Academies’ position here. A qualified
motion picture is a series of related images and the related sound
recordings that constitute all or part of an original work created
primarily for entertainment, commercial, industrial, or
educational purposes. § 212.06(1)(b), Fla. Stat. Some of the

    2 Florida voters recently passed an amendment to the Florida
Constitution that will soon prevent us from deferring to agency
interpretations of statutes. Art. V, § 21, Fla. Const. (effective
January 8, 2019), printed in Fla. Dep’t of State, Proposed
Constitutional Amendments and Revisions for the 2018 Gen.
Election        19,       https://dos.myflorida.com/media/699824/
constitutional-amendments-2018-general-election-english.pdf.
    3  This rule will not be abrogated by the recently passed
constitutional amendment and is an independent basis for our
ruling.

                                  5
Academies’ students may have produced portfolios that would
qualify as a motion picture under the statute, but it is impossible
to determine from the record what percentage of students were
producing portfolios that would qualify because the ALJ did not
break down the programs of study by percentage. We do not know
what percentage of the Academies’ students created an animation
program or a movie score; therefore, there is insufficient evidence
to determine that the Academies were “primarily engaged” in
teaching students to perform certain tasks “directly in connection
with the production of a qualified motion picture.”

     To conclude, the Department’s interpretation of section
212.0602 is reasonable, and we must affirm based on two
principles of law. One, we owe great deference to an agency’s
interpretation of a statute it has been tasked with administering.
Two, we must strictly construe any tax exemption against the tax
payer. For these two reasons, we affirm the Department’s final
order determining that the appellants were not entitled to the tax
exemption.

B.L. THOMAS, C.J., concurs; WINOKUR, J., specially concurs with
opinion.
                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________

WINOKUR, J., specially concurring.

     I agree with the majority that interpretation of section
212.0602, Florida Statutes, employed by the Department in this
case is proper and compels affirmance.

     I question whether we should, in making this determination,
rely on the maxim that “statutes providing exemptions from a
general tax are strictly construed against the tax payer.” Maj. op.
at 5. I see no compelling reason to employ an interpretative rule
for this type of statute that does not apply to any different statute,
and that in practice obligates a court interpreting such exemption

                                  6
to rule against the taxpayer. I agree with the observations of Judge
Griffin of the United States Court of Appeals for the Sixth Circuit:

    [T]he statute at issue, like all statutes, should not be
    construed “broadly,” “narrowly,” “strictly,” or “liberally,”
    but rather fairly and reasonably. . . . “[A] text should not
    be construed strictly, and it should not be construed
    leniently; it should be construed reasonably, to contain all
    that it fairly means.”

Appoloni v. United States, 450 F. 3d 185, 200 (6th Cir. 2006)
(Griffin, J., concurring in part and dissenting in part) (quoting
Antonin Scalia, A Matter of Interpretation: Federal Courts and The
Law 23 (1997)). See also Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 362 (2012) (“Like
any other governmental intrusion on property or personal freedom,
a tax statute should be given its fair meaning, and this includes a
fair interpretation of any exceptions it contains. . . . [T]he terms of
the exception [to a tax statute] ought to be reasonably, rather than
strictly, construed.”).

    Nonetheless, as stated, even without resort to this statutory-
construction maxim, I believe the order below should be affirmed
and concur in the majority opinion to do so.

                  _____________________________

Jonathan W. Taylor, Joseph C. Moffa, Gerald J. Donnini, James F.
McAuley, and James H. Sutton, Jr., of Moffa, Sutton & Donnini,
P.A., Fort Lauderdale, for Appellants.

Pamela Jo Bondi, Attorney General, Amit Agarwal, Solicitor
General, Edward M. Wenger, Chief Deputy Solicitor General, and
Christopher J. Baum, Deputy Solicitor General, Tallahassee, for
Appellee.




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