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October 22, 2018


Sweet and Sour

The Citrus Department faces a setback in its policy of taxing producers to fund advertising.

Pat Dunnigan | 2/1/2005
A Florida Department of Citrus program that levies a tax on citrus producers to pay for advertising is a violation of the growers' First Amendment rights, a Lakeland appellate court panel has ruled.

The case is part of a growing body of law around the country in which programs that assess agricultural producers for a collective advertising campaign have been struck down on the grounds that they constitute a form of compelled speech, in violation of the First Amendment.

"Since we began the case (in 2002) there have been rulings knocking down programs on apples in Washington, table grapes in California and alligator skins in Louisiana," says Mike McMahon, a partner with Akerman Senterfitt in Orlando who represented a group of eight citrus producers in the case.

In addition, McMahon says federal courts have struck down programs for advertising pork, beef and milk. In early December, the U.S. Supreme Court heard arguments in a case involving a South Dakota program for beef advertising.

In Florida, the issue is expected to reach the Florida Supreme Court, where the Department of Citrus plans to appeal if its motion for rehearing in the 2nd District Court of Appeal is rejected.

The Florida program imposes a 16.5 cents a box tax on citrus. The majority of the money is used to fund a generic advertising campaign that promotes ideas like the health benefits of drinking juice. The Department of Citrus argues that the tax is assessed as part of a larger government regulatory function and not just to create advertising. But by law, at least 73% of the money collected from the box tax must be spent on advertising.

McMahon says his clients don't like the campaign because it makes no distinction between juice produced from Florida oranges and juice made from their competitors in Brazil. Many of the state's big juice processors use Brazilian oranges in their juices. "It's selling Brazilian juice," McMahon says of the campaign.

In addition, one grapefruit producer objected to an advertising campaign that promoted grapefruit juice as a mixer in alcoholic drinks, McMahon says.

The bottom line, he says, is that his clients believe their money would be better spent on their own operations.

Florida Innocence Initiative: A Matter of Time and Money
With less than 10 months before a state-imposed deadline shuts the door on the DNA-based claims of as many as 700 Florida inmates contesting their convictions, Tallahassee lawyer Jenny Greenberg and two other lawyers are culling the requests and scrounging for case records as part of the Florida Innocence Initiative.

From the beginning, in 2003, it was practically guaranteed that Greenberg, part of the national effort founded by lawyers Barry Scheck and Peter Neufeld, would run out of time before she ran out of cases.

Now the project is in danger of running out of money before it runs out of time. Though Florida legislators passed a law in 2001 to allow inmates to bring DNA-based challenges to their convictions, only those on death row are entitled to state-paid lawyers. So the Innocence Initiative survives on whatever grants and contributions it can cobble together, along with volunteer legal

At one point last summer, Greenberg says the project's bank account balance fell below $1,000.

But emergency appeals to the Florida Bar and an effort by former law school dean Sandy D'Alemberte put the project back on track, at least temporarily. "We're still not sure we're going to survive beyond six months," Greenberg says. As of mid-December, the program had about $60,000 -- enough to see approximately three cases through.

So far it has been money well spent. Of the six cases concluded, three have resulted in exonerations.

But to Greenberg, the results go beyond individual results. "We have the opportunity to identify these cases and learn from these cases," she says, "and make sure things don't keep occurring."

Tags: Politics & Law, Around Florida, Agriculture, Government/Politics & Law

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