The ruling in favor of growers says the citrus industry is not a collective group.

LAKELAND -- The 2nd District Court of Appeal ruled Wednesday in favor of growers who filed suit against the Florida Department of Citrus box tax, citing that it is unconstitutional.

The box tax is collected from growers and funds Department of Citrus marketing, research and regulatory programs. Eighty percent of the department's budget goes toward marketing programs.

The department said Wednesday it will appeal the ruling.

The ruling is based on a review of a March 31, 2003, decision by Judge Dennis Maloney of the 10th Circuit Court in Bartow. Maloney ruled the tax levied by the Citrus Department on Florida oranges and grapefruit used for juice violates the growers' First Amendment rights because it forces them to support speech (advertising) to which they object.

The Lakeland-based department is a state agency charged with promoting Florida citrus products.

Mike McMahon, lawyer for the growers, said he expected the department to continue to fight. He said he was quite pleased with the decision. "We are not in the 1930s anymore," he said.

McMahon was referring to a U.S. Supreme Court decision that upheld a marketing tax for growers of California tree fruit. But the court approved that tax because of a policy in place since the 1930s that essentially put growers in a forced collective.

The 2nd DCA ruling said the court did not consider the tax to be governmental speech, protected from the provisions of the First Amendment. And, the ruling said, the Florida Citrus Code does not collectivize the citrus industry. "The DOC may set certain standards for the quality of citrus produced and marketed, but it does not set prices or restrict the quantity of citrus that can be produced or marketed," the court ruling said.

But the issue, according to FDOC lawyer Ken Keck, has yet to be resolved. The FDOC has 30 days to file an appeal with the Florida Supreme Court. Under state law, the court must hear the case.

Keck referred to a line in Wednesday's ruling quoting Judge Darryl Casanueva. "Although I fully concur in the court's opinion," the judge said, "I believe the issue of generic advertising is not yet fully resolved."

Pending, precedent-setting court cases are still up in the air that will have an impact on the issue, Keck said. "Certainly we are disappointed," he said. But it's far from over, he stressed.

Andrew Taylor, chairman of the Florida Citrus Commission, said in a statement two of three appellate judges signaled the issue needs to be determined by a higher court. "In fact, the U.S. Supreme Court currently has before it a case in which similar issues will be resolved," he said.

Dan Gunter, executive director of the FDOC, said in a statement the department is disappointed and is planning an immediate appeal.

" It is our position that the box tax is constitutional and provides a direct benefit to the citrus industry," he said. "Without the programs funded by the box tax, the multi-billion dollar Florida citrus industry and the 90,000 jobs it creates will be placed in serious jeopardy."