Bond Validation Appeal From A Final Order

Of The Thirteenth Judicial Circuit,

Hillsborough County, Florida

Appellant, Cross-Appellee,

v.

Emeline C. Acton (FBN 309559) James D. Palermo (FBN 0060827)

County Attorney City Attorney

Mary Helen Campbell (FBN 653810) Jerry M. Gewirtz (FBN 843865)

Assistant County Attorney Assistant City Attorney

Christine Beck (FBN 767328) 315 E. Kennedy Blvd.

Assistant County Attorney 5th Floor, City Hall

27th Floor, County Center Tampa, FL 33602

601 E. Kennedy Blvd. (813) 274-8996

Tampa, FL 33601

(813) 272-5670

Raymond Ehrlich (FBN 022247) STALLINGS & EVANS

Steven L. Brannock (FBN 319651) Donald A. Gifford (FBN 127338)

Henry M. Morgan, Jr. (FBN 351679) John Van Voris (FBN 083395)

Susan L. Turner (FBN 772097) 501 E. Kennedy Blvd.

400 North Ashley Drive 14th Floor

Tampa, FL 33602 Tampa, FL 33692

(813) 227-8500 (813) 273-5000

INTRODUCTION 1

STATEMENT OF THE CASE 3

STATEMENT OF THE FACTS 3

Background 4

The Stadium Agreement 6

The 2001 Super Bowl 8

Other Stadium Events 9

The Proposed Stadium Bonds 9

Governmental Approvals 10

Public Purpose - Economic Benefits 11

Public Purpose - Intangible Benefits 12

Final Judgment and Appeal 13

SUMMARY OF THE ARGUMENT 14

ARGUMENT 16

CONCLUSION 37

CERTIFICATE OF SERVICE 39

INDEX TO APPENDIX and APPENDIX attached

SUPPLEMENT TO JOINT APPENDIX separately bound

Bauman v. Centex Corp.,

611 F.2d 1115 (5th Cir. 1980) 35

Bazell v. City of Cincinnati,

233 N.E.2d 864 (Ohio 1968),

cert. denied, 391 U.S. 601 (1968) 24

Bender v. State,

472 So. 2d 1370 (Fla. 3d DCA 1985) 35

Brandes v. City of Deerfield Beach,

186 So. 2d 6 (Fla. 1966) 21-22, 29

Canakaris v. Canakaris,

382 So. 2d 1197 (Fla. 1980) 36

CLEAN v. State of Washington,

928 P.2d 1054 (Wash. 1996) 22-24

Consolidated Mut. Ins. Co. v. Hampton Shops, Inc.,

332 So. 2d 101, 102-03 (Fla. 3d DCA 1976) 36

County of Erie v. Kerr,

373 N.Y.S.2d 913 (N.Y. App. Div. 1975),

appeal denied, 348 N.E.2d 619 (N.Y. 1976) 24

Facilities Dist. v. Paul,

179 So. 2d 349 (Fla. 1965) 21, 28

DeLuca v. Merrell Dow Pharmaceuticals,

911 F.2d 941, 952-53 (3d Cir. 1990) 35

Department of Corrections v. Williamson,

549 So. 2d 1071 (Fla. 5th DCA 1989) 35

Goldfarb v. Robertson,

82 So. 2d 504, 506 (Fla. 1955) 33

Ginsberg v. City & County of Denver,

436 P.2d 685 (Colo. 1968) 24

Gomez v. Couvertier,

409 So. 2d 1174 (Fla. 3d DCA 1982) 35

Higgins v. Kinnebrew Motors, Inc.,

547 F.2d 1223 (5th Cir. 1977) 35

Husky Industries, Inc. v. Black,

434 So. 2d 988 (Fla. 4th DCA 1983) 36

Kelly v. Marylanders for Sports Sanity,

530 A.2d 245 (Md. 1987) 24

Kurynka v. Tamarac Hosp. Corp.,

542 So. 2d 412 (Fla. 4th DCA),

rev. denied, 551 So. 2d 462-63 (Fla. 1989),

receded from on other grounds, 611

So. 2d 1270, 1276 (Fla. 4th DCA 1992) 35-36

878 F.2d 1360 (11th Cir. 1989),

cert. denied, 493 U.S. 1079 (1990) 21

Libertarian Party of Wisconsin v. State,

546 N.W.2d 424 (Wis. 1996) 23-24

Lifteau v. Metropolitan Sports Facilities Comm'n,

270 N.W.2d 749 (Minn. 1978) 22, 24

Linscott v. Orange County Indus. Dev. Auth.,

443 So. 2d 97 (Fla. 1983) 22

Maklakiewicz v. Berton,

652 So. 2d 1208 (Fla. 1st DCA 1995) 35

Marks v. Marks,

576 So. 2d 859 (Fla. 3d DCA 1991) 35

Martin v. City of Philadelphia,

215 A.2d 894 (Pa. 1966) 24

Meyer v. City of Cleveland,

171 N.E. 606 (Ohio Ct. App. 1930) 24

Miami Dolphins, Ltd. v. Metropolitan Dade County,

394 So. 2d 981 (Fla. 1981) 20, 25

New Jersey Sports & Exposition Auth. v. McCrane,

292 A.2d 580 (N.J. Super. Ct. Law Div. 1971),

aff'd, 292 A.2d 545 (N.J. 1972) 24

Noble v. Martin County Health Facilities Auth.,

682 So. 2d 1089 (Fla. 1996) 16, 27, 30

Facilities Auth.,

247 So. 2d 304 (Fla. 1971) 19, 31

Control Dist. v. State,

604 So. 2d 440 (Fla. 1992) 16, 19, 28

Orange County Civic Facil. Auth. v. State,

286 So. 2d 193 (Fla. 1973) 20, 25

Panama City v. State,

93 So. 2d 608 (Fla. 1957) 24, 27, 28

Peninsula Fed. S&L v. D.K.H. Prop's,

616 So. 2d 1070 (Fla. 3d DCA),

rev. denied, 626 So. 2d 204 (Fla. 1993) 34-35

Pepin v. Division of Bond Finance,

493 So. 2d 1013 (Fla. 1986) 19

Poe v. Iorio,

Case No. 96-5537 (13th Cir.,

Hillsborough County, Aug. 26, 1996) 16

Ramirez v. State,

542 So. 2d 352, 355 (Fla. 1989) 36

Raney v. City of Lakeland,

88 So. 2d 148 (Fla. 1956) 18

Reyes v. Prince George's County,

380 A.2d 12 (Md. 1977) 24

Rice v. Ashcroft,

831 S.W.2d 206 (Mo. Ct. App. 1991) 24

Riggins v. Mariner Boat Works, Inc.,

545 So. 2d 430 (Fla. 2d DCA 1989) 35

Robinson v. Hunter,

506 So. 2d 1106 (Fla. 4th DCA),

rev. denied, 518 So. 2d 1277 (Fla. 1987) 35

Rodriguez v. State,

413 So. 2d 1303, 1304 (Fla. 3d DCA 1982) 36

Dade County,

492 So. 2d 686 (Fla. 3d DCA 1986),

rev. denied, 503 So. 2d 328 (Fla. 1987) 21

Rowe v. Pinellas Sports Auth.,

461 So. 2d 72 (Fla. 1984) 20, 25, 26

Smithson v. V.M.S. Realty, Inc.,

536 So. 2d 260 (Fla. 3d DCA 1988) 35

State v. City of Daytona Beach,

431 So. 2d 981 (Fla. 1983) 27

State v. City of Miami,

379 So. 2d 651 (Fla. 1980) 25, 28

State v. City of Miami,

41 So. 2d 545 (Fla. 1949) 20

State v. City of Tampa,

146 So. 2d 100 (Fla. 1962) 20

State v. Clay County Dev. Auth.,

140 So. 2d 576 (Fla. 1962) 29

State v. County of Brevard,

77 So. 2d 767 (Fla. 1955) 18

Facilities Dist.,

89 So. 2d 34 (Fla. 1956) 20

State v. Jacksonville Port Auth.,

204 So. 2d 881 (Fla. 1967) 16, 29

State v. Okaloosa County Airport & Indus. Auth.,

168 So. 2d 745 (Fla. 1964) 28

State v. Orange County Indus. Dev. Auth.,

417 So. 2d 959 (Fla. 1982) 28

State v. Osceola County Indus. Dev. Auth.,

424 So. 2d 739 (Fla. 1982) 28

State v. Reedy Creek Imp. Dist.,

216 So. 2d 202 (Fla. 1968) 27, 28

Recreation Dist.,

383 So. 2d 631 (Fla. 1980) 24-25

State v. Tampa Sports Auth.,

188 So. 2d 795 (Fla. 1966) 4, 26

State v. Town of North Miami,

59 So. 2d 779 (Fla. 1952) 29

Tampa Sports Auth. v. State,

Case No. 77-6456 (13th Cir.,

Hillsborough County, July 5, 1977) 4

Tampa Sports Auth. v. State,

Case No. 75-800 (13th Cir.,

Hillsborough County, 1975) 4

Wald v. Sarasota County Health Facilities Auth.,

360 So. 2d 763 (Fla. 1978) 16

Warner Cable Communications, Inc. v. City of Niceville,

520 So. 2d 245 (Fla. 1988),

cert. denied, 488 U.S. 825 (1988) 27

Art. VII, § 10, Fla. Const. 16

Ch. 88-226, Laws of Fla. 18

Ch. 95-304, Laws of Fla. 18, 22

Ch. 96-520, Laws of Fla. 10

§ 90.704, Fla. Stat. 34

§ 196.012(6), Fla. Stat. 10, 19, 22

§§ 212.20, Fla. Stat. 18

§ 288.1162, Fla. Stat. 5, 9, 10, 18, 23, 26

§ 288.1162(7), Fla. Stat.

(Ch. 95-304, Laws of Fla.) 18, 22

26 U.S.C. § 141 7

Hillsborough County Ordinance 96-12 19

Tampa City Council Resolution Nos. 1388, 1554 19

TSA Resolution 96-121 19

INTRODUCTION

Hillsborough County, the City of Tampa, and the Tampa Sports Authority (collectively, the "Issuers"), appeal the trial court's refusal to validate bonds intended to fund construction of a new community stadium in Tampa. The new stadium will replace an aging stadium in need of $52 million in repairs and will enable the Tampa Bay area to keep its National Football League franchise, the Tampa Bay Buccaneers (the "Bucs"), for the next 30 years.

The trial judge refused to validate the bonds despite overwhelming evidence that the stadium project serves a paramount public purpose. The trial judge's ruling ignores:

In its final judgment the trial court recognized and recited these indicia of the public purposes served by this stadium project. However, the trial court erroneously concluded that one particular provision in the proposed stadium agreement between the Bucs and the Tampa Sports Authority was too favorable to the Bucs to allow the bonds to be validated. In so doing, the trial court went beyond its narrow task in bond validation proceedings. The Florida Constitution requires the court to determine whether the construction of the stadium and the retention of the Bucs in the Tampa area serves a paramount public purpose. In making this decision, the trial court is required to defer to the decisions of state and local public officials unless their decisions were clearly erroneous. The trial court had no authority to second-guess elected public officials on the particulars of their negotiations with the Bucs. Although reasonable people might differ on the concessions that should be offered to keep a professional sports franchise from relocating, the wisdom of public officials as they make these difficult and controversial decisions is a matter for the voters, not the courts, to decide.

Here, elected officials were confronted with the potential loss of a business worth at least $3 billion to the future of their community. They struck their best deal to preserve those benefits to their constituents. Their efforts should not go for naught just because the trial court felt that the deal with the Bucs could have been marginally better.

The judgment of the trial court should be reversed and the bonds validated.

References to the Parties and Record

In this brief the Appellant/Cross-Appellee, William F. ("Bill") Poe, Sr. will be referred to as "Poe," and Appellees/Cross-Appellants, the City of Tampa, Hillsborough County and Tampa Sports Authority will be collectively referred to as the "Issuers."

The Joint Appendix will be referred to by the symbol "JA" followed by the volume and page or exhibit number. The Supplement to Joint Appendix, filed by the Issuers in order to provide the Court a more complete record substitute, will be referenced as "SJA" followed by the tab and page number. A copy of the order on appeal is attached to Issuers' brief and referenced as "A" and page number. Exhibits are identified by the prefix "PX" for Issuers' Exhibits and "DX" for Poe's Exhibits. Poe's Initial Brief will be referred to as "Poe Br."

This appeal arises from two consolidated lower court actions, the Issuers' Complaint to validate a series of revenue bond issues intended to fund the construction of Tampa's new community stadium (the "Community Stadium"), and Poe's suit for injunctive relief and a declaration that the expenditure of funds and the incurrence of a debt to construct the Community Stadium violates the Florida Constitution. The consolidated cases resulted in a single judgment of the trial court refusing to validate the bonds.

Although Poe embraces the trial court's decision on validation, his brief ignores the court's findings of fact which largely support the Issuers' case. Instead, Poe resorts to a one-sided presentation of the facts overlooking the crucial point that the court below has already resolved any conflicts in the evidence. Thus, Issuers restate the facts to give the court the benefit of the competent substantial evidence upon which the trial court's factual findings were based. Where necessary and material, Issuers correct the many factual misstatements in Poe's brief.

Background

Since 1976 the Bucs have played their home games in a stadium owned and operated by the Tampa Sports Authority (the "TSA") (JA III-367). TSA originally built the stadium, currently known as "Houlihan Stadium," in 1967 (JA VI-PX-32). Additional seating and luxury boxes were added in 1975 after the National Football League awarded the Bucs' franchise to Tampa. These changes were necessary to bring Tampa Stadium up to then-current NFL standards (JA XVI-PX-3).

The original stadium, as well as the improvements necessary to accommodate the Bucs, were financed by bond issues, all of which were validated without significant controversy. State v. Tampa Sports Auth., 188 So. 2d 795 (Fla. 1966); Tampa Sports Auth. v. State, Case No. 75-800 (13th Cir. Hillsborough County, 1975); Tampa Sports Auth. v. State, Case No. 77-6456 (13th Circuit Hillsborough County, July 5, 1977). Poe, as the Mayor of Tampa, participated in the 1975 and 1977 bond financings relating to stadium improvements to benefit the Bucs. These bonds were backed by a pledge of non-ad valorem tax monies provided by the County and City (JA XVI-PX-31,32). Poe executed documents that found that the Bucs benefitted the economy both by providing tourism and generally promoting the image of the area, thereby serving a "commendable public purpose" (JA XVI-PX-31,32).

Now thirty years old, Houlihan Stadium needs significant repairs. Professional engineers engaged by TSA estimate that the required repairs will cost approximately $52 million (JA III-457), not including the cost of any upgrades or additional amenities that might be added to the stadium (JA III-457). As the trial court noted, these repairs would be necessary even if the Bucs left Tampa. (JA XVI-tab 38, p. 3)

In 1995 the Bucs were sold to a new owner for approximately $192 million (JA I-48). During the negotiations with several possible purchasers, the new owner and other prospective bidders advised local public officials that the team required additional stadium-related revenue sources (such as luxury suites, club seats and the like) to remain financially competitive with other NFL teams. These bidders made clear that they intended to relocate if a new stadium were not constructed incorporating such amenities (JA V-675). The new owner reiterated this position after he acquired the team (JA V-676). These concerns regarding the Bucs' fiscal competitiveness were justified. The Bucs lost $60 million in 1995 and $33 million in 1996 playing in the existing stadium (JA III-410). The trial court concluded that it was "not unreasonable" for local public officials to conclude that the Bucs would in fact relocate if a new stadium was not constructed (JA XVI-tab 38, p. 3; JA III-676,720). This determination was based on the owner's announced intentions, proposals the Bucs received from other cities (JA V-704) and the recent relocations experienced by Los Angeles, Oakland, St. Louis, Houston and Cleveland (JA VI-842, 843; JA VIII-1152).

The Stadium Agreement

After considering the substantial repairs necessary for the existing stadium and determining that it could not be economically rehabilitated to provide the required revenue enhancing amenities the Bucs needed, Issuers made the decision to construct a new stadium (JA I-66; II-244). As a result, negotiations between the Issuers and the new owner of the Bucs commenced in the fall of 1995 and continued into 1996, culminating in an agreement dated August 28, 1996 (the "Stadium Agreement"), under which the TSA agreed to construct a new 65,000-seat community stadium at a cost of approximately $168.5 million to serve as the Bucs' home field and a $12 million training facility for the Bucs' use (JA XII-PX-12). The Stadium Agreement requires the Bucs to utilize the stadium for 30 years and to pay the TSA a total of $3.5 million annually, of which $2 million is allocated to stadium rent, $1 million to practice facility rent and $500,000 as a fee for certain development rights granted to the Bucs with respect to stadium property (JA XII-PX-12). The TSA will manage the stadium and realize an additional $1.93 million annually from a surcharge on tickets for Bucs games and other stadium events (JA XII-PX-12). A summary of the principal financial terms of the Stadium Agreement is appended to the Final Judgment entered by the trial court attached hereto at page A-1.

Public officials involved in the negotiating process and an NFL official testified that the Stadium Agreement compares favorably with recently negotiated leases relating to other NFL stadiums (JA I-60, JA V-701, 718, JA VI-839-841). Although the club seating, luxury suites and other amenities of the new stadium are expected to yield $8 million to $16 million in additional revenue for the Bucs (JA III-416-417), testimony indicated that these provisions are not inconsistent with modern NFL leases being negotiated in the current competitive marketplace for NFL teams. These modern NFL leases give most if not all stadium revenue to the team (JA V-701). These are precisely the additional revenue streams that all of the serious prospective purchasers for the Bucs needed to remain competitive both financially and on the playing field (JA III-369, 430; JA II-675). Without these revenue streams, the Bucs have announced their intention to relocate to another city (JA V-676).

The 2001 Super Bowl

As a direct result of the Issuers' commitment to construct a new stadium, the NFL has selected Tampa to host the Super Bowl in January, 2001 (JA I-35-36; JA V-734-735). A Senior Vice President of the NFL testified that without a new stadium, the staff of the NFL would not have recommended Tampa as a Super Bowl host (JA VI-837,851,852). This witness also testified that with a new state-of-the-art stadium he would recommend that additional Super Bowls be held in Tampa (JA V-839). If the new stadium is not built, it is likely that the 2001 Super Bowl will be awarded to another city and that Tampa will lose the opportunity to host future Super Bowls (JA V-850-52).

Other Stadium Events

In addition to hosting 10 Bucs games annually and one or more Super Bowls, the new stadium will host more than 30 other major events each year, including Tampa Bay Mutiny professional soccer games, University of South Florida intercollegiate football games, high school football games, the annual Outback Bowl football game, equestrian events, tractor pulls, motor-cross events and concerts (JA IV-543-544). Witnesses testified, and the trial court found, that if a new stadium is not constructed, some of these other events currently held in Houlihan Stadium might relocate to competing state-of-the-art facilities -- even if the $52 million of repairs to Houlihan Stadium recommended by professional engineers are made. (JA II-345, JA V-715, JA XVI-tab 38, p.3).

The Proposed Stadium Bonds

To finance construction of the new stadium, the TSA proposes to issue up to $33 million in revenue bonds supported by state sales tax monies, $11.5 million in revenue bonds supported by the local option fourth-cent tourist development tax and $160 million in revenue bonds supported by approximately 11.7 percent of revenues to be realized from a county-wide local option half-cent sales tax (the "Community Investment Tax") (JA I-44, JA IV-530). The Community Investment Tax is designed to fund school construction, criminal justice projects and numerous other capital projects within Hillsborough County, the City of Tampa, Plant City and Temple Terrace (JA I-45, JA XIV-PX-19). The tax was approved by 53% of the voters in a widely publicized referendum held in September, 1996 (JA V-692) -- a referendum that Poe tried unsuccessfully to stop through a lawsuit that culminated in a judicial finding (which Poe did not appeal) that the bonds served a paramount public purpose (JA XVI, tab 37). The evidence established that, based on historical trends, tourists will pay approximately 25 percent of the Community Investment Tax, representing more than twice the amount needed to fund the new stadium (JA I-45). Neither the full faith and credit nor the taxing power of the Issuers is pledged for the repayment of the bonds.

Governmental Approvals

The bonds are to be issued by the TSA pursuant to the authorizations contained in its enabling legislation, Chapter 96-520, Laws of Florida (1996) (the "TSA Enabling Act"). The governing body of the TSA has adopted a resolution authorizing the proposed bond issues, the governing body of the County has adopted interlocal agreements relating to the stadium financing, and the governing bodies of the TSA and City have each adopted resolutions approving the interlocal agreements and other documents relating to the stadium financing (JA XIII-13,4; JA XIV-21,22,26,28). As discussed infra, such resolutions include express findings that the new stadium serves a valid public purpose. In addition, sections 196.012(6) and 288.1162, Florida Statutes, and the TSA Enabling Act contain express legislative determinations that sports facilities and retaining professional sports franchises serve a public purpose.

Public Purpose - Economic Benefits

The trial court found that even using the most conservative forecasts, the stadium and the Bucs will have a $3 billion economic impact on the community over the 30 year life of the Stadium Agreement before any adjustments for future inflation (JA XVI tab 38, p. 7). The Issuers' expert witnesses testified that the Bucs provide an annual economic benefit to the Tampa Bay economy ranging from a high of $183 million (JA I-130-31) to a low of $83 million exclusive of inflation (JA II-281-282). Other experts testified that the Super Bowl scheduled to be held in the new stadium in the year 2001 can be expected to yield an economic benefit in excess of $300 million (JA VI-926, 952-54) and the stadium construction project itself should provide an economic benefit to the local economy of approximately $263 million, given the projected use of local labor and materials (JA II-302).

The court rejected the conflicting testimony of Poe's experts who opined that neither the Bucs nor the Super Bowl provide any measurable economic benefit to the local economy (JA VII-1073; JA VIII-1184,1887,1997; JA IX-1314). None of Poe's experts was able to present financial data that directly contradicted the data on which Issuers' experts relied in compiling their economic forecasts (JA VIII-1136; JA IX-1352; JA XVI-tab 38, p.7). After weighing the testimony, the trial Court found Issuers' experts' forecasts were more credible (JA XVI-tab 38). The trial court determined that the local community will realize substantial economic benefits from the continued presence of the Bucs and from hosting the 2001 Super Bowl, and that over time these benefits can be expected to far exceed the cost of the new stadium (JA XVI-38, p.7).

Public Purpose - Intangible Benefits

In addition to the quantifiable economic benefits described above, the trial court found that the Bucs made a substantial intangible contribution to the Tampa Bay area. (JA XVI-tab 38, p. 8). This finding was supported by testimony from the Mayor of Tampa, the Hillsborough County Administrator, the Past President of the Greater Tampa Chamber of Commerce, the President of the Tampa/Hillsborough County Convention Association and others regarding the immeasurable economic benefits realized as a result of national media exposure in newspapers and from televised Bucs games and Super Bowls, including the value of such exposure in helping to attract tourists and new businesses to the Tampa Bay area (JA I-34,35,62; JA II-249-50; JA V-685,696,707,730,743,822). In addition, several witnesses testified that without an NFL team, the community would find it more difficult to compete with other cities for new business (JA I-34,35,62,137; JA II-249,250; JA V-685,686,730). The trial court found this testimony to be credible (JA XVI-tab 38. p. 8). The trial court also found that the Bucs instill civic pride and camaraderie into the community and that Bucs games and other stadium events serve a commendable public purpose by enhancing the community's image on a nationwide basis and providing recreation, entertainment and cultural activities to its citizens (JA XVI-tab 38, p.8).

Final Judgment and Appeal

On March 21, 1997 the trial court entered the final judgment that is the subject of this appeal (A 1; JA VXI-tab 38). Despite its recognition of the economic impact of the Bucs, the court refused to validate the bonds based on one provision in the Stadium Agreement. The court was offended by the clause allocating to the Bucs the first $2 million dollars in net annual revenues from non-Bucs events. Except for this one provision, the court held that the new stadium project serves a paramount public purpose. The court's Order denying rehearing reiterates that the court would "validate the bonds if an agreement can be made between the Bucs, the City of Tampa, Hillsborough County and the Tampa Sports Authority to revise paragraph 10 of the Stadium Agreement to delete the clause that grants the right to the Bucs to receive the first $2 million per year from non-Bucs events" (JA XVI-tab 39).

On March 31, 1997 Poe filed an appeal from the Order of the trial court. Poe's appeal was purely tactical, designed to prevent the trial court from considering any modifications that the TSA might make in its lease with the Bucs in light of the court's ruling. Poe had no legitimate basis to file an appeal because he was not aggrieved by the trial court's ruling, which granted him all the relief he sought. Issuers filed their cross-appeal on April 3, 1997. Shortly thereafter, this Court entered its order dramatically accelerating the briefing and oral argument of this case.

SUMMARY OF THE ARGUMENT

The trial court, after hearing the testimony of more than 20 witnesses including expert witnesses on both sides, properly found that constructing the Community Stadium and retaining the Bucs will generate substantial economic benefits as well as immeasurable intangible benefits to the Tampa Bay Community. Indeed, the trial court properly determined that the stadium project will generate benefits of at least $3 billion exclusive of inflation. The trial court also found that the stadium and the Bucs will generate immeasurable intangible benefits such as attracting national media exposure, helping to attract tourists and new businesses to the Tampa Bay Area, instilling civic pride and camaraderie into the community, enhancing the community's image on a nationwide basis and providing recreation, entertainment, and cultural activities to its citizens. These findings of fact were clearly within the province of the trial court, were supported by competent substantial evidence and should not be disturbed.

In light of these findings on the benefits to be realized from the stadium project, the state and local legislative findings of public purpose, approval by the voters in a referendum, and the substantial case law supporting the project, the trial court should have validated the bonds. The court's decision that one clause in the Stadium Agreement was too beneficial to the Bucs overlooks the many decisions of this Court upholding projects in the public interest even when a private party will receive substantial benefits. The court exceeded its authority by attempting to micromanage the stadium negotiations between the Bucs and the Issuers. The wisdom or financial viability of the Stadium project is within the province of legislative officials, not the courts.

Finally, Poe's attacks on the court's evidentiary rulings are irrelevant, and in any event must fail because these rulings were not an abuse of discretion. The issue is not whether the elected public officials made the correct decision, but only whether there was a reasonable basis for their actions. The fact that experts may disagree is no basis to rule that the public officials' decisions were clearly erroneous.

The court should reverse the decision of the trial court and validate the bonds. If the trial court is affirmed, the bonds should still be validated conditioned upon the renegotiation of the offending portion of the Stadium Agreement.

The narrow role of the courts in bond validation proceedings is to determine whether the governmental entity has the power to issue the bonds, and whether it exercised such power in accordance with the law. Noble v. Martin County Health Facilities Auth., 682 So. 2d 1089 (Fla. 1996). Poe does not question the Issuers' authority to issue the bonds. Thus, the only question is whether the new stadium project violates Article VII, Section 10 of the Florida Constitution because the Bucs will benefit from their lease with the Sports Authority. Article VII, Section 10 provides:

According to this Court, a bond issue does not violate Article VII, Section 10 so long as the project serves a "paramount public purpose," even if a private party benefits from the bonds. See Northern Palm Beach County Water Control Dist. v. State, 604 So. 2d 440, 441-42 (Fla. 1992); Wald v. Sarasota County Health Facilities Auth., 360 So. 2d 763 (Fla. 1978). So long as a paramount public purpose exists, and private interests are only incidentally benefitted, bonds are constitutional. See State v. Jacksonville Port Auth., 204 So. 2d 881 (Fla. 1967).

The Issuers proved below and will demonstrate here that the construction of a new Community Stadium, which will keep the Bucs in Tampa for the next thirty years, serves a paramount public purpose. Our brief opens with a discussion of State and local legislative findings that stadium projects in general and this stadium project in particular serve a paramount public purpose. As this Court has acknowledged, it is the province of these public officials, and not the court, to determine what is in the public interest.

Next, we will demonstrate that these legislative findings of paramount public purpose are not clearly erroneous. Indeed, the trial court determined that conservatively, the new stadium project and the Bucs will have at least a $3 billion economic impact on the Tampa community over the next thirty years. Obviously recognizing the import of this conclusion -- $3 billion in economic impact presents a powerful case of paramount public purpose -- Poe asks this Court to revisit the trial court's factual determinations. However, the trial court's findings of economic impact are based on competent substantial evidence and must be affirmed.

As we show below, the trial judge's factual findings on economic impact, combined with the declarations of state and local public officials and the referendum, should have compelled the conclusion that the bonds serve a paramount public purpose. Yet, the trial judge erroneously refused to validate the bonds based on one provision in the Stadium Agreement that grants the first $2 million from non-Bucs events to the Bucs. The trial court had no business second-guessing the wisdom of the Issuers' lease negotiations with the Bucs. We close by addressing Poe's complaints regarding the trial court's evidentiary decisions. As shown below, none of these decisions was an abuse of discretion. All of the Issuers' evidence demonstrated a reasonable basis to support the decision of these elected officials and the voters that this stadium project serves a paramount public purpose.

State and local legislative officials have determined that constructing a sports facility to retain a professional sports team such as the Bucs serves a public purpose. The legislative preamble to Chapter 88-226 of the Laws of Florida, which is entitled an "act relating to professional sports franchises," expressly provides that such franchises serve an important public purpose:

Pursuant to this legislation, the State of Florida established a funding mechanism to partially subsidize the construction of sports facilities for new professional sports franchises within the State of Florida. §288.1162(7), Fla. Stat. (Supp. 1996). This statute conditions the receipt of the rebate on proof that a long term lease is in place with a professional team.

More recently, the state legislature expanded its subsidization of sports facilities to include a "facility for a retained professional sports franchise." Ch. 95-304, Laws of Fla. (Emphasis supplied). This legislation recognizes the important public purpose in retaining existing professional sports teams. According to the legislative preamble to Chapter 95-304, "existing professional sports franchises provide Florida communities with a source of recreation and contribute to civic pride, and . . . such existing professional sports franchises provide jobs and enhance economic development and well-being for the citizens of

Florida . . . ." Confirming this public purpose, the legislation makes funds available to assist in retaining professional sports teams in danger of relocation. See also § 196.012(6), Fla. Stat. (Supp. 1996) (lease of public stadium by private party serves a public purpose).

Local public officials charged with making decisions relating to the stadium and the Bucs reached similar conclusions regarding the value of the stadium project. Summarizing the findings made by the County, the City, and the TSA, the Interlocal Agreement for Stadium Financing confirms the public purpose of the stadium project. According to the Agreement: "The acquisition and construction of the stadium by the Authority complies with the County's plan of tourist development and will promote the influx of tourists to the County and thereby benefit the local economy, and will be of substantial benefit to the entire County and thereby serves a public purpose." (JAPX-14).

Confirming the limited role of the courts in bond validations, this court has held that these legislative declarations of public purpose are presumed valid. See, e.g., Northern Palm Beach County Water Control Dist. v. State, 604 So. 2d 440, 442 (Fla. 1992) ("This court has stated that a legislative declaration of public purpose is presumed to be valid, and should be deemed correct unless so clearly erroneous as to be beyond the power of the legislature."); Pepin v. Division of Bond Finance, 493 So. 2d 1013, 1014 (Fla. 1986) ("Legislative declarations of public purpose are presumed valid and should be considered correct unless patently erroneous."); Nohrr v. Brevard County, 247 So. 2d 304, 309 (Fla. 1971) (those challenging a legislative declaration must show that the determination was "so clearly wrong as to be beyond the power of the legislature").

The declarations of the state and local legislators relevant to this case are supported by well-settled authority in Florida and from many other jurisdictions holding that the construction of a sports facility serves a valid public purpose. The leading case in Florida is State v. Daytona Beach Racing & Recreational Facilities Dist., 89 So. 2d 34 (Fla. 1956) where this Court considered the validity of bonds issued to finance the Daytona Motor Speedway. Addressing whether there was a paramount public purpose supporting the Speedway, the Court held that bonds could be validated notwithstanding that a private corporation would realize substantial private gain from the facility. Deferring to legislative findings of public purpose, this Court recognized the important public benefits resulting from the construction of the Speedway and other such facilities. Id. at 36-37.

Consistently following this reasoning, this Court has validated bonds for the construction of the original Tampa Stadium, the enlargement of the Orange Bowl, the construction of Tropicana Field in St. Petersburg, the enlargement of the Tangerine Bowl and a host of other cultural and recreational projects. See also Miami Dolphins, Ltd. v. Metropolitan Dade County, 394 So. 2d 981 (Fla. 1981) (tourist development tax to modernize and improve the Miami Dolphins' home stadium not unconstitutional); Daytona Beach Racing & Recreational Facilities Dist. v. Paul, 179 So. 2d 349 (Fla. 1965) (reconfirming the important public purpose of building recreational and tourist facilities such as the Speedway).

Other courts addressing Florida stadium projects have reached similar results. See Rolling Oaks Homeowners' Ass'n, Inc. v. Dade County, 492 So. 2d 686, 688 (Fla. 3d DCA 1986) ("[t]he use of public property as a sports stadium has been approved as use for a public purpose."), rev. denied, 503 So. 2d 328 (Fla. 1987); Lake Lucerne Civic Ass'n, Inc. v. Dolphin Stadium Corp., 878 F.2d 1360 (11th Cir. 1989) ("The construction of a sports stadium was a legitimate public purpose under Florida law...."), cert. denied, 493 U.S. 1079 (1990).

The only Florida case to the contrary cited by Poe is the anomalous and outdated case of Brandes v. City of Deerfield Beach, 186 So. 2d 6 (Fla. 1966). In Brandes, this Court, in a narrow 4-3 ruling, held that the construction of a spring training facility for the Pittsburgh Pirates did not serve a paramount public purpose. However, Brandes offers little assistance to the resolution of this case for several reasons. First, the Court's analysis of the private versus public benefits is extremely conclusory. Id. at 12. The decision sheds no light on what evidence, if any, was in the record that the proposed spring training facility would have a positive economic impact to its community. It may well be that the record (unlike the record here) contained little or no evidence of the public benefit to be derived from the project.

More importantly, however, Brandes is out of step with the other stadium cases cited above and with modern precedent taking a broader view of paramount public purpose. Put simply, the dissent's prediction that "the Court has today drawn too tight a line around public financing for the accomplishment of legitimate public objectives" has proven prophetic. Id. at 12 (Thornal, J., dissenting). Brandes cannot be reconciled with more recent pronouncements of this and other courts on the paramount public purpose of building community stadiums and other recreational or tourist facilities.

Brandes also predates important changes in the law relating to the public purposes that bond financing can serve. After Brandes was decided, the Florida Constitution was amended to expand the power of local governments to use bond financing. Brandes also predates the legislature's declaration that the construction of a sports facility and the retention of existing professional sports franchises serve a public purpose. §§ 196.012(6), 288.1162(7), Fla. Stat.; Ch. 95-304, Laws of Fla.

Brandes aside, Florida law is consistent with overwhelming precedent in other jurisdictions. For example, in CLEAN v. State of Washington, 928 P.2d 1054 (Wash. 1996), the Supreme Court of Washington recently held that the expenditure of public funds to finance the construction of a "state-of-the-art" sports facility passed constitutional muster. In CLEAN, the management of the Seattle Mariners had expressed the need for a new stadium to achieve financial stability and to become financially competitive with other major league baseball clubs. Absent the new stadium, the Mariners suggested that they would be forced to relocate to another city.

In the CLEAN case--just as in the case at hand--the party challenging the construction asserted that public development of a sports facility did not serve a public purpose but rather served only the interests of the Mariners. The Washington Supreme Court, in rejecting this constitutional attack, stated:

928 P.2d at 1060-61.

The Wisconsin Supreme Court reached a similar conclusion in Libertarian Party of Wis. v. State, 546 N.W.2d 424 (Wis. 1996), approving the construction of a new $250 million sports facility for the Milwaukee Brewers, next to an already existing stadium. The court held that the new stadium served a paramount public purpose notwithstanding that a private entity -- the Milwaukee Brewers -- would benefit from the construction of the stadium. 546 N.W.2d at 424.

CLEAN and Libertarian Party are representative of numerous cases nationally finding that the construction of a sports stadium serves a public purpose despite the benefit realized by the professional teams using those stadiums. A representative sample of those cases is included in the margin.

Poe's response to this overwhelming case law is to misconstrue it. Recognizing the inevitable conclusion that this stadium project serves a public purpose, Poe argues that Issuers must also prove that the bonds are being repaid entirely from revenues of the stadium project (Poe Br. at 31-33). No case so holds and there are cases to the contrary.

For example, in Panama City v. State, 93 So. 2d 608 (Fla. 1957), Panama City sought to issue bonds to build a large waterfront development, where a portion of the development consisted of concession buildings to be leased to private owners. The bonds were to be repaid from revenue derived by rent payments, utilities services, excise taxes, licenses, and sources other than ad valorem taxes. Although private interests were involved, this Court approved the bonds that were not payable solely by project revenue. Likewise, in State v. Sunrise Lakes Phase II Special Recreation Dist., 383 So. 2d 631 (Fla. 1980), this Court upheld bonds secured by ad valorem taxes, issued for the purpose of purchasing recreational facilities that would be located within a private condominium development. This Court noted that although the facilities would be available to the general public, the condominium residents will "receive the primary benefits because of their close proximity to the recreational facilities." Id. at 633.

In State v. City of Miami, 379 So. 2d 651 (Fla. 1980), this Court upheld bonds secured by net revenues derived from the project as well as other revenues of the City of Miami, exclusive of ad valorem taxes. The bonds were issued for the purpose of constructing a convention center, a hotel, and a retail area. Id. at 652. The City agreed to lease to a developer certain properties for the construction and operation of a hotel, construct a water plant to service the convention center and hotel, and give the developer priority to reserve a share of the spaces in the parking garage. Id. Obviously, in City of Miami private interests benefitted greatly from the publicly financed project.

Poe's argument also ignores the original Tampa Stadium financing. This Court validated the bond even though they were to be repaid by funds pledged by the city of Tampa and Hillsborough County in addition to Stadium revenues. State v. Tampa Sports Authority, 188 So. 2d 795 (Fla. 1966). See also Rowe v. Pinellas Sports Authority, 461 So. 2d 72 (Fla. 1984) (stadium built to attract Major League Baseball team funded by tourist development tax).

Poe's diversions cannot obscure the only conclusion that can be drawn from this overwhelming body of case law. The stadium project serves a paramount public purpose and the bonds should be validated.

After recognizing the legislative determinations of public interest, the approval of the project by Hillsborough County voters, the case law confirming the constitutionality of such projects, and the substantial positive economic impact on the Tampa Community, the trial court was legally bound to validate the bonds. Instead, it stopped just short. The court observed that it would find a paramount public purpose and validate the bonds but for one provision in the Stadium Agreement. That provision reserved to the Bucs the first $2 million of revenue from non-Bucs events at the stadium. Put simply, in a deal worth between $3 and $6 billion to the citizens of the Tampa area, the court found that the parties' allocation of $2 million in annual revenues tipped the scales against the public interest.

Florida law is clear on the narrow task that confronted the trial court. Public officials are given "wide latitude" in connection with public projects of a recreational or entertainment nature. Panama City v. State, 93 So. 2d 608, 613 (Fla. 1957). The fact that the trial court may have preferred the Stadium Agreement to be negotiated differently is irrelevant. It is not within the province of the court to pass upon the wisdom of the decisionmakers involved in the project or to second-guess the project's fiscal viability. Id. at 615; Warner Cable Communications, Inc. v. City of Niceville, 520 So. 2d 245 (Fla. 1988), cert. denied, 488 U.S. 825 (1988). See Noble v. Martin County Health Facilities Auth., 682 So. 2d 1084 (Fla. 1996) (it is beyond the court's jurisdiction in a bond validation proceeding to consider the economic effects of the proposed project); State v. City of Daytona Beach, 431 So. 2d 981 (Fla. 1983) ("questions concerning financial and economic feasibility" are to be resolved at the executive level and "are beyond the scope of judicial review in a validation proceeding"). Once a public purpose is found, the fact that a private party may also benefit, even substantially, does not render the project unconstitutional.

Several cases dramatically illustrate these principles. For example, in State v. Reedy Creek Imp. Dist., 216 So. 2d 202 (Fla. 1968), this Court addressed development bonds that would primarily benefit Walt Disney World, far and away the largest landowner in the district. Despite the substantial benefit to Disney, the Court correctly validated the bonds, recognizing the larger public purpose in developing and encouraging tourism. Disney's substantial benefit was dismissed as no more than incidental to this important public purpose. Id. at 206.

Applying the same reasoning, this Court validated bonds to finance the construction of a Days Inn because of the legislative finding that this hotel was needed to support the area's developing tourist industry. State v. Osceola County Indus. Dev. Auth., 424 So. 2d 739 (Fla. 1982). Important to the Court was the public officials' determination that the hotel would benefit tourism development. The fact that all of the profits of the hotel would benefit a private business was only incidental.

Perhaps this Court's clearest statement of these principles appears in Daytona Beach Racing & Recreational Facilities Dist. v. Paul, 179 So. 2d 349 (Fla. 1965). When the Speedway was first built, the District had the right to use the facility for six months. Later, this was reduced to 3 months, any of which could be preempted by the private Speedway Corporation. This Court was not troubled by the fact that the deal skewed so substantially in favor of the private party. The lease still served a predominately public purpose because of the Speedway's value as a unique tourist and business attraction to the area. Id. at 355.

The trial judge misapplied these cases by summarily concluding that one clause in the Stadium Agreement rendered the private benefit more than incidental. However, the ultimate determination of public purpose is not judged by so fine a measure as to depend upon one $2 million clause in a $3 billion deal. To the contrary, Florida courts have never reweighed the negotiation decisions of the public officials developing the project. Once the paramount public purpose was shown, the fact that a private party might benefit very substantially was considered incidental.

Even if the courts were permitted to weigh the public interest against the private benefit, this balance tips decidedly toward the public interest in this case. Even using the trial court's conservative estimates, the direct economic benefit to the Tampa Community over the next 30 years exceeds $3 billion before adjustments for inflation. As a result of the new stadium, the Tampa area already has one Super Bowl in hand (with its accompanying $300 million in economic impact), along with the prospect of several more over the next 30 years. At the same time, the court recognized the "immeasurable economic benefits" realized as a result of national media exposure and newspapers and from televised Bucs games (JA XVI-tab 38, p. 7). The Court also found that the Bucs instilled civic pride and served a "commendable public purpose by enhancing the community's image on a nationwide basis and providing recreation, entertainment and cultural activities to its citizens" (JA XVI-tab 38, p. 8). These benefits extend beyond the Bucs and their fans. As the trial court observed, the new stadium will host more than 40 major events each year including Bucs games, Tampa Bay Mutiny Professional Soccer Games, University of South Florida football games, high school football games, bowl games, equestrian events, tractor pulls, motor cross events and concerts (JA XVI-tab 38, p. 8).

Yet, all of these very substantial benefits are at risk because of the trial court's decision. The Tampa area faces a very credible threat that the Bucs will leave if the new stadium is not built. All of the major prospective bidders for the Bucs made clear that a new stadium would be necessary to survive. The fate of cities like Baltimore, Cleveland, Oakland, St. Louis, Houston, and Los Angeles, all of whom have experienced the loss of a professional football franchise, proves the severity of this threat.

Thus, the Issuers had to choose between letting the Bucs relocate -- thereby losing the substantial revenues produced by the Bucs, the 2001 Super Bowl, prospective future Super Bowls, and suffer at least $3 billion in potential losses -- or they could negotiate their best possible deal to keep the team, thus preserving these substantial benefits to the community. Even if, in the trial court's opinion, the Issuers had to offer one concession too many to keep the team, the ultimate decision was for the Issuers and their constituents. Reasonable people may disagree about what financial concessions should be made to sports teams to prevent them from relocating, but such decisions should be made by the voters and those who have been elected to represent their interests, not by the courts. Noble v. Martin County Health Facilities Auth., 682 So. 2d 1089.

The trial court was correct to recognize the importance of the Bucs to the Tampa Bay Community. That recognition should have compelled a determination that the stadium project served a paramount public purpose and resulted in the validation of the bonds.

If this Court were to affirm the decision of the trial court on the offending $2 million clause or any other clause, this decision should not be fatal to Issuers' validation request. Rather than merely affirm, or affirm with a remand, Issuers respectfully request that this Court issue an Order validating the bonds, so long as any unconstitutional provisions are deleted from the Stadium Agreement. See Nohrr, 247 So. 2d at 311 (validating bonds while striking offending provision from mortgage).

As this Court has recognized by setting such a short briefing and argument schedule, time is of the essence. The new community stadium is under construction even as this Court considers its decision. The sooner that any uncertainty is resolved relating to the financing for the new stadium, the better for the taxpayers of Hillsborough County and Tampa. Accordingly, rather than remanding this case for further proceedings if any portion of the Stadium Agreement is declared unconstitutional, this Court should validate the bonds under the condition that the offending provision be removed. Id.

Such a procedure is by far the most efficient for the Court and most cost-effective for the taxpayers, whatever the result. If the Court does not validate at least conditionally, the Issuers will be forced to start over in the trial court (assuming they can renegotiate the offending clause), perhaps even with a new validation proceeding. The result would be substantial delay and almost certainly a second appeal to this Court. All this can be avoided by a conditional validation of the bonds.

In light of the importance of this case, the amount of taxpayer dollars at stake, and the Court's effort to expedite the ultimate decision, Issuers respectfully seek the Court's assistance in reaching a final decision on the merits as quickly as possible.

Faced with the adverse factual determination that the stadium project has a substantial economic benefit, Poe has no choice but to attack the trial judge's fact-finding through the court's evidentiary decisions. As the record demonstrates, the trial court's findings of economic benefit were supported by competent substantial evidence. The trial court had the benefit of testimony from distinguished economists and other highly qualified experts who testified regarding the substantial economic benefit to be realized from the project. The Court heard from the public officials involved in making these decisions and from prominent members of the Tampa Bay Community who testified regarding the importance of building the Community Stadium and keeping the Bucs.

Poe's attacks on these witnesses completely miss the point of this proceeding. Poe proceeds as if Issuers can prevail only if they prove their economic calculations with absolute precision. To the contrary, the real question is whether the public officials charged with making this decision acted reasonably in light of the evidence available to them at the time they made these difficult and important public decisions. Elected officials need not discharge their responsibilities with scientific certainty. As discussed above, the courts must defer to their decisions unless they are clearly erroneous.

In other words, the point is not whose experts are more credible, but whether the public officials had a reasonable basis to believe that there were substantial economic and other benefits to be derived from the project. The solid expert witness testimony offered by the Issuers only serves to underscore the reasonableness of the elected officials' decisions in this case.

In any event, Poe's challenge to the testimony of the Issuers' expert witnesses is without merit. Poe suggests that the trial court should not have allowed Professor Shils, Professor Hogan or Ron Barton of KPMG to testify regarding the impact of the Bucs and Super Bowls on the Tampa Bay economy since they utilized a mathematical software model prepared by outside entities to calculate the multiplier effect. Mr. Barton explained that the software models in question consist of 400 by 400 matrices containing a series of multipliers for various industries based on census data and business economic data furnished by the U.S. Department of Commerce (JA II-317-318, 320). He testified that the models contain thousands of coefficients and simply aggregate a complicated mathematical exercise (JA II-317). Thus, Poe's objection is comparable to suggesting that a person should not be allowed to use a computer to solve a complex mathematical problem unless he can explain the underlying mechanics of the computer.

Professor Hogan testified that he used the RIMS input/output software model prepared by the Bureau of Economic Analysis ("BEA") of the U.S. Department of Commerce, which is widely used and one of three or four economic impact models generally accepted for use in conducting economic impact studies (JA VI-933-934, 941). He noted that the RIMS model calculates the multiplier effect for each individual kind of expenditure and produces output, earnings and employment results utilizing three separate matrices containing 4,563 coefficients (JA VI-943-945).

Mr. Barton used the EIFS model in calculating the economic impact of the Bucs and the IMPLAN model in calculating the impact of the stadium construction project. The EIFS model was developed by the University of Illinois for the Department of Defense and the Corps of Engineers to test the economic impact of base closures and public works profits (JA II-290-91). It is reasonably relied upon in computing economic impacts (JA II-290). The IMPLAN model, which utilizes the same theory as the EIFS model, was developed by a private corporation for the U.S. Department of Forestry and is used by the Department to measure the economic impact of its policy decision (JA II-290-291, 314-315, 320).

Finally, Professor Shils used a multiplier provided by the Wharton Econometric Center which is similar to the multiplier generated by the RIMS, EIFS and IMPLAN models (JA I-110-111). He testified that he had used the multiplier in both local and national impact studies, that he had investigated multipliers that are used by various universities and government agencies and the Wharton Econometric multiplier is similar to the multipliers provided by the BEA (JA I-106-07, 110-11), and that the Wharton multiplier is consistent with multipliers utilized in economic impact studies in the sports industry (JA II-236).

The law is settled that experts may rely on facts or data that are inadmissible if, as in the instant case, they are of a type reasonably relied upon by experts on the subject to support the opinion expressed. § 90.704, Fla. Stat. (1995). See, e.g., Peninsula Fed.

S & L v. D.K.H. Props, 616 So. 2d 1070 (Fla. 3d DCA), rev. denied, 626 So. 2d 204 (Fla. 1993); Marks v. Marks, 576 So. 2d 859 (Fla. 3d DCA 1991); Robinson v. Hunter, 506 So. 2d 1106 (Fla. 4th DCA), rev. denied, 518 So. 2d 1277 (Fla. 1987); Gomez v. Couvertier, 409 So. 2d 1174 (Fla. 3d DCA 1982); DeLuca v. Merrell Dow Pharmaceuticals, 911 F.2d 941, 952-53 (3d Cir. 1990); Bauman v. Centex Corp., 611 F.2d 1115 (5th Cir. 1980); Higgins v. Kinnebrew Motors, Inc., 547 F.2d 1223 (5th Cir. 1977). The cases relied on by Poe are readily distinguishable. In Department of Corrections v. Williamson, 549 So. 2d 1071 (Fla. 5th DCA 1989), the court held that it was proper for an expert to consider an inadmissible affidavit in formulating his opinion. Bender v. State, 472 So. 2d 1370 (Fla. 3d DCA 1985) held that medical opinion testimony is admissible even though it relies on inadmissible medical reports. In Smithson v. V.M.S. Realty, Inc., 536 So. 2d 260 (Fla. 3d DCA 1988), the court reiterated the proposition that an expert witness is entitled to render an opinion premised on inadmissible evidence which is reasonably relied upon by experts. In Riggins v. Mariner Boat Works, Inc., 545 So. 2d 430 (Fla. 2d DCA 1989), the expert rendered his opinion exclusively on information outside of the record. In contrast, here the Issuers' experts relied on financial data introduced into evidence. In Maklakiewicz v. Berton, 652 So. 2d 1208 (Fla. 1st DCA 1995) and Kurynka v. Tamarac Hosp. Corp., 542 So. 2d 412 (Fla. 4th DCA), rev. denied, 551 So. 2d 462-63 (Fla. 1989), receded from on other grounds, 611 So. 2d 1270, 1276 (Fla. 4th DCA 1989), the courts merely cautioned that the evidence rule that allows experts to rely on inadmissible facts or data does not permit an expert to render an opinion based exclusively upon such information. Finally, in Husky Industries, Inc. v. Black, 434 So. 2d 988 (Fla. 4th DCA 1983) the court simply held that expert testimony is not admissible unless the witness has expertise in the area in which the opinion is sought. By contrast, the Issuers' experts have substantial expertise in the conduct of economic impact studies.

Poe's challenge to the trial court's refusal to qualify Jim Wurdeman as an expert witness is also without merit. Mr. Wurdeman's credentials were seriously in question. His CPA license expired 10 years ago, he has no prior experience in analyzing stadium projects like the one at issue here, he has no expertise in evaluating the economic impact of a sports team, he has never qualified as an expert witness, and he has no designation as a certified financial planner (JA IX 1233-1236, 1244). In light of these facts the trial court's decision to exclude Mr. Wurdeman's testimony was not an abuse of discretion. Ramirez v. State, 542 So. 2d 352, 355 (Fla. 1989); Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980); Rodriguez v. State, 413 So. 2d 1303, 1304 (Fla. 3d DCA 1982); Consolidated Mut. Ins. Co. v. Hampton Shops, Inc., 332 So. 2d 101, 102-03 (Fla. 3d DCA 1976).

The trial court's evidentiary conclusions were sound. Poe's attempt to cast doubt on the trial court's factual findings must be rejected. The court's determination that the stadium project will result in a substantial positive economic impact is supported by competent substantial evidence.

For all the foregoing reasons, the trial court's decision in refusing to validate the bonds should be reversed. This Court should enter an Order validating the bonds and dismissing Poe's claims with prejudice.

In the event that this Court finds any provision in the Stadium Agreement to violate the constitution, Issuers respectfully request that this Court enter its opinion validating the bonds on the condition that the offending provisions are satisfactorily modified or deleted.

By___________________________ By______________________________

Emeline C. Acton James D. Palermo

County Attorney City Attorney

Fla. Bar No. 309559 Fla. Bar No. 309559

Mary Helen Campbell Jerry M. Gewirtz

Assistant County Attorney Assistant City Attorney

Fla. Bar No. 653810 Fla. Bar No. 843865

Christine Beck 315 E. Kennedy Blvd.

Assistant County Attorney 5th Floor, City Hall

Fla. Bar No. 767328 Tampa, Florida 33602

27th Floor, County Center 813/274-8996

601 E. Kennedy Blvd.

Tampa, Florida 33601 Attorneys for

813/272-5670 City of Tampa, Florida

Attorneys for Hillsborough

County

By___________________________ By___________________________

Donald A. Gifford Raymond Ehrlich

Fla. Bar No. 127338 Fla. Bar No. 22247

John Van Voris Steven L. Brannock

Fla. Bar No. 083395 Fla. Bar No. 319651

SHACKLEFORD, FARRIOR, STALLINGS Henry M. Morgan, Jr.

& EVANS Fla. Bar No. 351679

501 East Kennedy Blvd. Susan Turner

14th Floor Florida Bar No. 772097

Tampa, FL 33692 HOLLAND & KNIGHT LLP

813/273-5000 400 North Ashley Drive

Tampa, Florida 33602

Attorneys for Tampa Sports 813/227-8500

Authority

Attorneys for Tampa Sports

Authority

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the foregoing has been furnished by fax, and by mail with the attached Appendix and Supplement to Joint Appendix, to: Chris H. Bentley, Esq. and Diane D. Tremor, Esq., Rose, Sundstrom & Bentley, 2548 Blairstone Pines Drive, Tallahassee, Florida 32301, Thomas K. Morrison, Esq., 1200 W. Platt St., Suite 100, Tampa, FL 33606 and J. Michael Hayes, Esq. General Counsel, State Attorney's Office, 800 E. Kennedy Blvd., 5th Floor, Hillsborough County Courthouse Annex, Tampa, FL 33602 this 28th day of April, 1997.

__________________________________________

Attorney

TPA2-423862

TAL-106723