### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON ASSIG NED O N BRIE FS MARC H 31, 2003 ADMIRALTY SUITES AND INNS, LLC, et al v . SHELBY COUNTY, TENNESSEE, ET AL 

### . Direct Appeal from the Chancery Court for Shelby County No. 99-0036-3 D. J. Alissandratos, Chancellor

No. W2002-02155-COA-R3-CV - Filed Novem ber 24, 2003

This case involves the constitutionality of Tenn. Code Ann. § 67-4-1425, whichgoverns occupancy taxes on hotels and motels. After conducting a he ari ng on the matter, the lower court found the statute constituti onal. For the foll owing r easons, we affir

m in part a

nd rever se in part the finding of the trial court.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed in Part, Reversed in Part and Remanded

A LAN E. H IGHERS , J., delivered the opinion of the court, in which D AVID R. F ARMER , J., and H OLLY M. K IRBY , J., joined.

J. Houston Gordon, L

yle Reid, Covin

gton, TN , for App ellants Edward J. McKenney , Jr., Memphis, TN, for Appellees City of Ba rtlett and City of Millington

Jef Feibelman, Susan M. Clark, Memphis, TN, fo r Appellees Town of Collierville and City of Germantown

Paul G. Summers , Attorne y G eneral & Repor ter, Char les L . Lew

is, Deputy

Attorney Genera l, Nashville, for Appe llee Paul G. Summ ers in his ca

pacity as Attorne

y Gener al for the State of Tennessee-2- OPINION Facts and Procedural History

This case involves the constitutionality of subsections ©) and (d) of Tenn. Code Ann. § 67-4- 1425 (2003), w

hich dea l with occupa

ncy taxes on hot

els and mo tels. The

Plaintiff s/Appella nts (“Plaintiffs”) in this action include ce rtain hotels an d motels af

fected by t he statute , as well a s guests of the establishments who paid the taxes created b y th e st atute. The Defendants/Appellees (“Defendants”) include the towns of Germantown, Collierville, Bartlett, and Millington, as well as Shelby Co un ty. These parties entere d into a wr itten stipu lation of a

ll the mate

rial fac ts giving rise to this cas e, which

states in r

elevant part:
The parties . . . hereby su

bmit, for t he purpo se of tria

l, the foll owing st

ipulated facts: 1. Pl aintif

fs Admira

lty S uites and

Inns , LLC; Admiral

ty Pl antation

Oaks, L LC; Norman Patel d/b/ a Super 8 Motel; Milli ngton I nn; Smith I

nvestmen ts, In c. d/b/a Econo Lodg e and Mag

nolia Suite s and I

nn; Country

Club Apar

tments , LTD d/

b/a HamptonInn, Collierville; and the Millington Area Hot el/Motel Association are businesses and an association of businesses, respectively , who operate and are invol vedin op er at in g h ot el s a nd mo te ls in mu ni ci pa li ti es wi th in Sh el by C ou nt y, Tennessee, some of

which are operating within the cities of Bar tlett, Collierville, Millington, or Germantown. 2. Country Club Apartments, LTD, d/b/a Hampton Inn, Collierville, is an operator of a hotel/mo tel in

Collierville, Tenness ee, and has been require d to colle ct and re

mit ho te l a nd mo te l t ax es im po se d b y th e m un ic ip al it y, Collierville, Tennessee, and by Shelby County, Tennessee, a

nd has paid and transmitted suc h munic ipal hotel or motel tax as being “paid under protest.” 3. Plainti ffsBen

Wita ker , Ka rin McA tee , L ee C ard

wel l, J. W. Under wood, W.F. Monsarr at, Mark King , Anne F luharty and James H errin a

re individ uals wh o are and/or were patrons at

motels and hotels located within Shelby County , Tennessee, and who paid a hotel or motel tax imposed by either the c ity of Bar tlett, the Town of Collierville, or the City of Germa ntown in addition to that imposed by Shelby Co un ty. 4. Plaintiff James B. Herrin and Anne Fluharty ha ve each paid “under protest” a hotel/motel tax imposed by either the City of B artlett, the Town of Collierville, or the City of Germantown. 5. The Ci ty of Bartle

tt, Tenne ssee; the

Town of Co llierville , Tennes see; the City of Ge rmantown, Tennessee; and the City of Millington, Tennessee, are each municipalities within Shelby County that are organized u

nder p rivate a

ct char ters. None of these municipalities are home-rule municipalities . . . 7. The Attorney G eneral has been properly made a party

to this action. 8. In 1988, theTennessee General Assembly enacted T.C.A. § 67-4-1425, which governs simultaneous county and c ity t axation of

hotel occ

upancy by private a

ct. Section67-4-1 425(a) pro hibits adoption of a private act that results in the1 Ten n. Cod e Ann. § 6 7-4-142 5(a) states as follows:

After May 12, 198 8, any private act which authorizes a ci ty or county t o levy a tax on the privileg e of o ccup ancy o f a hotel shall limit the application of such tax as follow s:

(1) A city shall only levy such tax on o ccupan cy of hotels located within its municipal bound aries; (2) A cit

y sh all not be authori zed to lev y suchtax on occupan cy of hote ls if the cou nty in which such c ity is located has levied such t ax prior to the adoption of the t ax by the cit y; and (3) A county shall

only l evy su ch tax on occupancy of hotel s locat ed wi thin i ts boundaries but outsi de the boundaries of anymunici palit y whi ch has l evied a ta x on s uch occ upancy prior to t he adopt ion of

suchtax by the co unty.

-3- simultaneous taxation of

hotel occ upancy by a county and the c ities loca

ted within that county. Section 67-4-1425©) e xempts Shelby County

from the provisions of § 67-4-1425(a). 9. At the time of the enactment of § 67-4-1425©), Shelby County had in existence a county-wide

5% hotel tax, which remains in effect . . . 10. T he General Assembly passed private acts authorizing Germantown in 1995, Colliervil le in 1996, Bartlett in 1997, and Millington in 1998 to amend their charters to permit those municipalities to levy a tax on hotel/motel occupancy as permitted by Tenn. Code Ann. § 67-4-1425©). (Chapter 120, Priva te Acts of 1995 (Germantown); Chapter 187, Private Acts of 1996 (Collierv

ille); Cha pter 97, Pr

ivate Acts of 1997 (Bartlett); and Chapter 186, Private Acts of 1998 (Millington); attached heretoas Collective Exh. 2). Each of these municipalities adopted the private act amendingits chart

er and, w ith the exception of Millington, passed an ordinance or resoluti on authoriz ing the c ollection of 5% tax on

occupa nts of hote ls or motel s within its municipal borders. (City of Ger mantown Code of Ordinances, Taxation, Art. V § 18-96, et

seq ., Town of Collierville Code of Ordinances § 10-101, et seq ., and City of Bar

tlett Resolution 8-97, attached hereto as Collective Exh. 3). 11. The 5% hotel/motel tax charged by the c ities of Bartlett, Germantown, and Co ll ie rv il le is in ad di ti on to th e 5 % t ax le vi ed by Shelby County

. . . 17. The General Assembly has amended § 67-4-1425 on two occas ions to crea te additional exemptions from the prohibition on simultaneous taxation contained in § 1425(a). In 1996, the legislature pr ovided an excep ti on fo r W il li am so n C ou nt y, codified in a new s

ubsection (d), an

d in 1999, the Gener

al Assemb l y amended
su bs ec ti on (d ) t o a dd an ex ce pt io n f or Ru th er fo rd Co un ty.
The various Plaintiffs filed the instant action in the Chancery Court of Shelby County

onJanuary 15, 1 999. Th ey sought to have subsections ©) and (d) of Tenn. Code Ann. § 67-4- 1425 declared unconstitutional, as well as the private acts enacted pursuant to those subsections.

. Tenn. Code Ann. § 67-4-14 25(a) se ts forth a gener al proscription against

doubletaxation on ho te ls an d m ot el s. Sp ec if ic al ly, it prohibit s a county and a muni cipality

therein from both

levying occupancy

taxes upon hotels or

motels with

in their borders. Instead, only the entity that first levies
anoccupa ncy tax may maintain that t ax. 1 Subsections ©) and (d) of Tenn. Code Ann. § 67-4-1425 thencreate

exception s to this general pr oscription, allowin

g double taxation of

hotels an d motels in-4-

Sh el by, Williamson, and Rutherford Counties. Te nn. Code Ann. § 67- 4-1425 (c )—(d). T hese exceptions were achieved through the use of population bracketing. Id . The Plain tiffs soug ht a declaration

from the lower court that these two subsections violated the equal protection provisions of the Tennessee Constitution. They a rgued that no rational basis exists to support the exclusion of Sh el by, Williamson , and Rutherford Counties from the general prohibition on double occ upancy taxation. The Plaintiffs further sought to have the lower court remove the offending subsections by way of elision. The Defendants maintained that the challeng ed subsections passed constituti onal muster. They also ar

gued that the court lacked subject matter jurisdict ion over s ome claim s, becau se many of the pla intiffs f ailed to c omply

with the requirements of Tenn. Code Ann. § 67-1-911 (2003), whichsets forth procedural requi rements for aggrieved taxpay

ers in pursuing their claims. The lower court conducted a hearing on stipulated facts, affidavits, briefs, and arguments of counsel. I n its final order, t he court found that subsections ©) and (d) of Tenn. Code Ann. § 67-4- 1425 did not suffer fromany constitutional infirmity . T he Plain tiffs timely filed the instant appeal, c hallenging the finding s of the lower cou

rt.

Issues

The Plaint

iffs rai se the fo llowing i ssues for our consi deration:
I. Whether

the lower court us ed the correct standard of review in determ ining th e constituti onality

of subsections ©) and (d) of Tenn. Code Ann. § 67-4-1425 and the private acts enacted thereunder

.
II

. Whether the lower court erred in finding that

subsections ©) and (d) of Tenn Code Ann. § 67-4-1425, and the private acts enacted thereun der, do not violate

the equal protection

provisions of Article 1, § 8 and Article 11, § 8 o f the Tennessee Constitution.

The Defendants raise an additional issue for our r eview:

III. Whether

the low er court erred in failing to dismiss, for lack of subject matter jurisdiction, certain claims in this case.

A. Whether

the lower court

erred in failing to dismiss all claims except those for refunds of hotel-motel taxes that were paid under protest in accordance with Tenn. Code Ann. § 67-1-911.

B. Whether

the lower court er red in failing to dismiss a

ll claims a gainst t he City of Millington for lack of ripeness.

Standard of Review-5-

The issues on appeal involve only questions of law. As su

ch, our r eview is de novo on the record before the

Court, with no presumption of correctness attaching to the findings of the lower court. Northland I

ns. Co. v. S

tate of Tennessee , 33 S .W.3d 727, 729 (Tenn. 2000); Cowden v. Sovran Bank/

Central Sou th , 816 S .W.2 d 741, 744 (T enn. 1 991)( citi ng Hill v. City of Chattanooga , 533 S.W.2d 311, 312 (Tenn. Ct. App. 1975)).
Law and Analysis

The Plaintiffs and Defendants raise three issues for o ur consider ation in thi s appeal . All issues raised

by the Plaintiffs focus on the constitutionality of Tenn. Code Ann. § 67-4-1425, while the Defendants’ only

issue on appeal concerns the lower court’s jurisdiction over some of the claims brought by the Plaintiffs. We will first address the question of subject matter jurisdiction raised by the Defe ndants.
Subject Matter Jurisdiction Subject matter jurisdiction involves a court’s power to adjudicate a particular controve r sy brought be fore it. Northland Ins. Co. , 33 S.W.3d at 729. “Courts derive their subject matter jurisdiction from the Constitution of Tennessee or from l egisla tive act a

nd canno t exercise jur isdictional powers that have not been conferre d directly on them expressly or by nece ssary implication.” First Am. Trust Co. v. Franklin-Murray Dev. Co., L.P. , 59 S.W.3d 135, 140 (Tenn. Ct. App. 2001) (internal citations omitted). Judgments entered by courts lacking subject matter jurisdiction are void. Id . at 141.

Inthe fir st jurisdictional issue, the Defendants maintain that courts derive their subject matter jurisdiction to hear tax challenges from Tenn. Code Ann. § 67-1- 911. This s t atute pr ovides, in releva nt part: (b) In order to car

ry out the legislative intent thatall of such sections, which now apply to the recovery

of state taxe s errone ously

paid, be c onforme d to apply also to the recovery

of taxes erroneously pa

id to municipalities, the following provisions are added: (1) The municipal officer collecting any municipal taxes paid

under pr otest sha ll pay suchrevenue into the municipal treasury and, at the time of payment, shall give notice to the mayor and boa rd of commissioners or other governing bo dy of such municipality that the taxes were paid unde r protest . . . .

Tenn. Code Ann. § 67-1-911. According to the Defe ndant s, the sig

nif icant part of the foregoing statute is the requirement

that a taxpayer pay

a disputed tax “under protest” before challenging the tax. The stipulated facts indicate that, of all the Plaintiffs in this action, only James B. He rrin and Anne Fluharty f

ollowed the procedure enumerated in Tenn. Code Ann. § 67- 1-911. The Defe ndants argue that, as a re sult, the lower cou rt lacke d subject

matter ju risdiction to hear

any claims in t

his matter except those brought by Mr. Herrin and Ms. Fluharty . We disagree.2 The Ge neral A ssemb ly granted M illington the autho rity to impose an occupancy t ax when i t enact ed Cha pter N o. 18 6, P rivate A cts of 1 998 . The M illington B oard of M ayor a nd A lderm en then duly ratified the act.
-6- We recently visited this issue in Decatur Coun ty v. Vulcan Materials Co. , No. W2001- 00858-COA-R3-CV, 2002 WL 31786985, a t *1 ( Tenn. Ct. App. 2003) and found that “pay ment under protest” is no longer the ex clusive procedure to challenge a tax. Id . at *5. In that case, we recognized

that Tenn. Code Ann. § 67-1-1807 (2003) relieves the obligation to pay “under p rotest” before pursuing a claim against the gove rnmental entity imposing the tax. Id . The wordingof the statut e, we found, is sufficiently br oad to encompass claims involving taxes paid to local entities suchas counties and municipalities. Id . Accordingly , we find that the Plaintiffs in the present action had no precedent obligation to pay the disputed taxes “under protest” beforebringin g their claims, and we affirm the finding of the lower court on this issue. In their next jurisdictional issue on appeal, the Defendants maintain that all claim s again st the City of Millington

should be dismissed for lack of ripeness. The Defendants base this argument on the fact that, while Millington has the authority to imp ose a

n occ upancy tax, 2 it has dec lined to actually do so. It is their contention that the lower court may not rule on the val idity of a tax Millington has y

et to impose , becau se to do so would amount to renderingan advisory opinion. The Defend ants rely upon two s ources of authority in support of their position. They first direct our attentionto the holding in State of Tennessee v. Williamson Tobacco Corp. , 18 S.W.3d 186 (Tenn. 2000), in which the Tennessee Supreme Court held:
[A] declar

atory judgmen t acti on cannot be used by a cour t to decide a theoretical question, render an advisory opinion which may

help a party in a

nother transaction,
or allay fears a s to what may occ

ur in the future. Thus, in order to maintain an action for a decla ratory judgmen t a justiciab le contr

oversy must exist. For

a controversy

to be justiciab le, a re al question rather than a the oretica

l on e must be presented and a legall y protect able inte rest must be as

stake. I f the con

troversy depends upon a future
or conting ent even

t, or invol

ves a theoretical or hy

pothetical state of facts, the controversy is not justiciable.

Id

. at 193 (internal citations omitted). The Defendants then rely upon our holding in Home Bui lders Ass’n v. Maury

County , N o. 01A01-9706-CH-00259, 1998 WL 867255, at *1 (Tenn. Ct. App. 1998), whichfocuses on

the justiciability of a challeng e to a county de velopment tax that was never a ctually imposed. In that case, the Maur y County Board of Commi ssioners ratified and adopted a development

tax, but declared that it would not be imposed “at this time.” Id . This Court held that there was no justiciable controversy because the record did not revea l any g enuine threat

that Maury County would sudde nly beg in en forc ing t

he ta x. Id . at *2. Th e recor

d in the pres ent case

likewise fails to indicate that the City of Millin gton has a ny plan s to be gin e

nfor cing the challe

nge d tax. As such, there is n

o justicia ble controversy involving Millington’s occupancy

tax, and the lower court erred in failing to dismiss the claims against Millington.3 The occupancy tax at iss ue in Ash wo rth was co difi ed as Priva te Chapte r 127 of the Priv ate Acts of 198 6 and c ontained the follow ing relevant prov isions:

SECTI ON 2. The legi slat ive body of Gree ne County is authori zed to levy a privil ege tax upon the privilege of oc cup ancy in a ny hote l of eac h transie nt . .

. Such tax is a privi lege tax upon the trans ient

occ upying such ro om a nd is to b e colle cted a s pro vided by this A ct.

Id

. at *1. The pr iv ate act s at is sue in th is cas e con tain t he s ame lan guage indi cati ng that the tax is to be levied upon the

occ upa nt of the h otel o r mo tel, and not up on the establish men t itself.
-7- Before leaving

th e issue of subject matter jurisdiction, we find it necessary to address one final jurisdict

ional prin cipal. Althoug

h neither party seems tohave ra

ised this exact issue on appea l, Tenn. R. A pp. P. 1 3(b) requires us to address it of our own initiative. Moore v. Chandler , 675 S.W.2d 153, 154 (Tenn. 1 984); First Am. Trust Co. v. Franklin-Murray Dev. Co., L.P. , 59 S.W.3d 135, 140 (Tenn. Ct. App. 2001); Morrow v. Bobbitt , 943 S.W.2d 384, 391-92 (Tenn. Ct. App. 1996). We must determine whether the trial court lacked j urisdicti on to entertain the claims brought by the hotels, motels, and hotel/motel associations. This Court, in Ashworth v. Green Cou nty , No. E2002- 00500-COA-R3-CV, 2003 WL 288430, at * 1 (Tenn. Ct. App. 2003), addressed the standing of hotels to bring suit on an occupancy tax nearly identica

l to the ones at issue in the instant case. 3 We held, in r elevant part:

It is a well settled principle in Tennessee that a party lacks standingto challenge a tax unless that party is the taxpay er. Brodbine v. Torrence , 545 S.W.2d 743, 744 (Tenn. 1977). This follows from the fact that one who is not the party a gainst whom a given tax is assessed does not sustain an injury distinct and palpa ble from the general population with respect to that tax . . . The Act explicitly states that “[s]uch tax is a privi lege tax upon the transient occupying such ro om an d is to be collected as provided by this Act”. . . [I ]t is clear that [the hotel operator] is not the taxpayer. The Act imposes an obligation

on an innkeeper

to collect and remit the tax. The Act does notdesignate the operator as the taxpayer . . . We hold that [the hotel operator] lacks standing to seek the relief set forth in her complaint.

Id

. at *3-4. We find that, just as the hotel operator in Ashworth lacked s tanding , those Pla intiffs in the current action who are not actual taxpay ers also lack standing. Consequently , the l ower co urt lacked subject matter jurisdiction to hear their claims.

Insum, the lower cou

rt was wit hout jurisd

iction tohear two groups of claims in the present matter. First, the trial court lacked jurisdiction to hear the claims of any Plaintiffs who are not actual taxpay ers. The lower court also lacked jurisdiction to hear any c laims against the City of Millington regarding the occu pancy tax. The tr

ial cour t, howeve r, did still prope

rly exercise jurisdiction over the claims of

the taxpayer

Plaintiffs. We must, therefore, address the substantive issues raised on appeal by th ese Plain

tiffs.
Standard of Review Employed by the Trial Court-8-

The Pl ai nt if

fs co nt en d t ha t t he tr ia l c ou rt fa il ed to em pl oy a cognizab le constitutional standard when ana lyzin g the va lidity of Tenn. Code Ann. § 67-4-1425©) and (d) a nd the pri vate acts passed thereunde

r. The fi nal orde r of the lower cou

rt read s in mater

ial part: [T]he Court find s that the e xemptions pr

ovided in subsections ©) and (d) arebased uponreasonable classifica tions an d a re no t c ap ri ci ou s, un re as on ab le , o r a rb it ra ry; ac co rd in gl y, § 67-4-14 25©) and (d) do not

violate e ither Ar

tic le I, Sectio n 8 or Ar tic le XI, Section 8 of the Tennessee Constitution. The Court finds that the defenda nts have presented many

possible goals of the Leg islature, which may ha

ve reasona bly been the impetus for enact

ing the provisions

in quest io n and which are sufficie nt to justif

y th e challe

nged c lassific ations.

We note, as a

n initial ma

tter, that the proper standard of review to be use d in analyzing the constituti onality

of a tax statute is the rational basis standard. City of Tullahoma v

. Bedford County , 936 S.W.2d 408, 4 12 (Tenn . 1997); Brentwood Liquors Corp. v. Fox , 496 S.W.2d 454, 457 (Tenn. 1973); Nolichuckey Sand Co., Inc. v. Huddleston , 896 S.W.2d 782, 788 (Tenn. Ct. App. 1994). In the context of

legislat ion containing particular classifications, such as the tax exceptions in the present case, ou r supreme court

has held t hat the r ational b asis stand

ard mea ns that “[i]f

any possible
reason can be conceived to justify the classification, or if the reasonableness be fa irly debatabl e,” thenthe legislation will not be struck down. Estrin v. M oss , 430 S.W.2d 345, 3 49 (Tenn. 1968)

. The standard for the lower court, then, was w hether any

reasona ble basis exists for the population exclusion brackets contained i n the occupancy

tax statute. As we read the language of the final order, the lower

court employed the c orrect standard. The language

of the order indicates that the trial court considere d the prop er fac tors, inc luding the reasonablene ss of, an d gr ounds for, the classifi cations. Accord

ingly, we aff

irm the sta

ndard of review e mploy ed by the trial court.

Constitut ionality of t he Occupanc y Tax Exce ptions

The final issue raised on appeal by the Plaintiffs is whether the lower court erred in finding that subsections ©) and (d) of Tenn. Code Ann. § 67-4-1425, and the private acts enacted thereunder, do not violate the equal protection provisions of Artic le 1, § 8 and Article 11, § 8 of the Tennessee Constitution. As stated above, the inquiry into the constitutionality of these provisions is governed by the rational basis

standar d. We note t

hat “[i]n construing

statutes, it is our duty

to adopt a constructionwhich wil l sustain a statute a

nd avoid c onstitutional confl i ct if any reasona ble constructione xists that satisfies the requirements of the Constitution.” Nolichuckey , 896 S.W.2d at 788 (q uoti ng Davis-Kidd Boo ksellers
, Inc. v. McWhe

rter , 866 S.W.2d 520, 529 (Tenn. 1993)). It is also we ll settled

that “[t]he

right to tax is essenti al to the existence o f gove rnment, a nd is peculia rly a matter for the Leg

islature, and the legislative power in this respect can only be r

estrained by a distinct and positive expression in the fundamental law.” Id . (quo ting Vertree s v. State Bd. of Election s , 214 S.W. 737, 740 (Tenn. 1919)). As such, any plaintiff seeking to challenge the constitutionality of a tax statute bears a hea vy burden. Id

.-9-

The record

indicate s that, at t

rial, the Defend ants prov ided exper

t affida vits givingpossible
reasons fo r t he ex cl us io n g ra nt ed to Sh el by, Williamson, and Rutherford Counties in the occupancy tax statute. These included affidavits by Dr. Harry

A. Gr een, th e Executive Director of the Tennessee Adviso ry Commission on I ntergovernmental Relations, and Dexter Muller, the former Director of Planning and

Development in Memphis and Shelby County . These experts opined that Sh el by, Williamson, and Rutherford Counties have all experienced rapid and substantial population growth over t he las t few d ecades . This gr owth, according to the Plaintiffs’ experts, has produced differen t and gr eater burdens on these counties to provide for stree ts, schools, police and fire protection, and other

county and munic ipal serv

ices. I t is this increa sed burden that necessitates great e r ta x r ev en ue s a nd ju st if ie s t he ex ce pt io n a ll ow in g d ou bl e- oc cu pa nc y ta xa ti on in Sh el by, Williamson, and Rutherfo rd Countie s. The Plaintiffs counter with statistics indicating that other counties have experienced similar g rowth. They

argue that such statistics make it unreasonable for the General Assembly

to classify based upon popula tion and population growth. This argument is insufficient

to meet the heavy bur

den borne by

the challenger of a tax statute. The fac t remains that the Legislature

need only find “an y po ssible reason”

that justif ies the c lassific ation. The Defend ants have shown thr

ough expe

rt opinion that ther e exists, at

t he leas t, a fair debate over the need of Sh el by, Williamson, and Rutherford Counties for their respective exclusions. The Le gislature was wellwithin its discretion to credit this view and act upon it. We will not disturb the decision of the Legislature

under such circumstances. Accordingly , we affirm the lower court in its finding on this issue.

Conclusion

For the fore going

reasons , we rev erse the

ruling o f the lowe

r court in part, affirm i

npart, and
re mand for proceedings consistent with this opinion. Costs on appeal are taxed to t h e Plaintiff s/Appella nts, Admiralty Suites and I nns,LLC, a

nd their sure ty, for which e xecution may is su e i f n ec es sa ry.

_________________________ ALAN E. HI GHERS, JUDGE