
    FLORIDA MANUFACTURED HOUSING ASSOCIATION, INC., Appellant, v. DEPARTMENT OF REVENUE, Appellee.
    No. 92-4390.
    District Court of Appeal of Florida, First District.
    Sept. 14, 1994.
    Jack M. Skelding, Jr., Patrick J. Phelan, Jr., and Jennifer Parker Lavia, of Parker, Skelding, Labasky & Corry, Tallahassee, for appellant.
    Robert A. Butterworth, Atty. Gen., and James McAuley, and Mark T. Aliff, Asst. Attys. Gen., Tallahassee, for appellee.
   PER CURIAM.

Florida Manufactured Housing Association, Inc. (FMHA) appeals a final administrative order of the Division of Administrative Hearings which denied the petition of FMHA to declare proposed Florida Administrative Code Rules 12D-6.001 and 12D-6.002 to be invalid. FMHA argues that section 193.075, Florida Statutes (1991), violates the prohibition against ad valorem taxation of mobile homes set forth in article VII, section 1(b) of the Florida Constitution. FMHA also argues that the Department of Revenue (DOR) has exceeded its rulemaking authority and that the rules are arbitrary and capricious. We affirm.

We reject the argument that section 193.075, Florida Statutes (1991), is unconstitutional. Article VII, section 1(b) of the Florida Constitution provides that “mobile homes, as defined by law, ... shall not be subject to ad valorem taxes.” (Emphasis added). Section 193.075, as amended in 1991, takes mobile homes which are permanently affixed to land owned by the mobile home owner out of the definition of mobile homes for purposes of article VII, section 1(b). Cf. Nordbeck v. Wilkinson, 529 So.2d 360 (Fla. 2d DCA 1988).

We also reject the argument that the proposed rules constitute an invalid exercise of delegated legislative authority because DOR has exceeded its rulemaking authority and the rules are arbitrary and capricious. As noted in the final order, the challenged rules add nothing whatsoever to the requirements of the law, but instead fit squarely within section 193.075, Florida Statutes (1991).

AFFIRMED.

BARFIELD, J., and JORGENSON, Associate Judge, concur.

BENTON, J., concurs with a written opinion.

BENTON, Judge,

concurring.

I write separately to point out that Florida Administrative Code Rule 12D-6.002(l)(d)l and 2 have been amended on account of statutory amendments that took effect after the administrative rule challenge proceedings under review here had come to a close. The challenged provisions originally took effect on February 17,1993, in the wake of the final order under review. The final order denied a challenge to Florida Administrative Code Rule 12D-6.002(l)(d)l and 2, as proposed, a challenge predicated in part on the contention that dealers and manufacturers should be able to treat mobile homes as inventory in certain circumstances, despite their being “permanently affixed” to realty.

After Hearing Officer Clark entered her scholarly order denying the petition to invalidate proposed rules, the Legislature enacted an amendment to section 193.075, Florida Statutes (1993), effective April 29, 1993. Ch. 93-132, § 6, at 763-64, Laws of Florida:

A mobile home shall be taxed as real property if the owner of the mobile home is also the owner of the land on which the mobile home is permanently affixed. A mobile home shall be considered permanently affixed if it is tied down and connected to the normal and usual utilities. However, a mobile home that is permanently affixed shall not be taxed as real property if it is being held for display by a licensed mobile home dealer or a licensed mobile home manufacturer and is not rented, occupied, or located on property used for mobile home occupancy. A mobile home that is taxed as real property shall be issued an “RP” series sticker as provided in s. 320.0815.

§ 193.075(1), Fla.Stat. (1993) (language added by the amendment underlined). This year saw legislative refinement of the 1993 amendment:

However, this provision does not apply to a mobile home that is permanently-affixed shall not be taxed as-real property-if-lt-is being held for display by a licensed mobile home dealer or a licensed mobile home manufacturer and that is not rented or T occupied —or located on property-used -for mobile-home occupancy.

Ch. 94-353, § 30, at-, Laws of Florida, 1994 Fla.Sess.Law Serv. No. 7, p. 1805. (Additions indicated by underline; deletions by strikeout.) In response to the legislative decision to allow dealers and manufacturers to treat mobile homes as inventory in certain circumstances, despite their being “permanently affixed” to realty, the Department of Revenue amended Florida Administrative Code Rule 12D-6.002(1)(d)1 and 2, on January 11, 1994, to read:

(d) This rule subsection shall apply to permanently affixed mobile homes which are held for display by a licensed mobile home dealer or a licensed mobile home manufacturer. The mobile home is considered tangible personal property and inventory not subject to the property tax if the following conditions are met:
1. It is being held strictly for resale as tangible personal property and is not rented or occupied; and
2. The mobile home is not used as a sales office by the mobile home dealer or mobile home manufacturer; and
3. The mobile home is not located on a parcel which is in a mobile home park, mobile home subdivision, or any other residential lot or residential parcel[.]

This change moots any question as to the validity of the prior, superseded rule provisions, on or after January 11, 1994. The final order was clearly correct when entered on November 30, 1992. It is perhaps worth noting, however, that from April 29, 1993, to January 10, 1994, Florida Administrative Code Rule 12D-6.002(l)(d)l and 2 lacked statutory authorization under amended section 193.075(1), Florida Statutes (1993), and would, therefore, have been an inappropriate basis for assessing real property on January 1, 1994. 
      
      . Proposed Rule 12D-6.001(3) and proposed Rule 12D-6.002(l)(d)l. and 2., Florida Administrative Code, as published in Volume 18, Number 4 of the Florida Administrative Weekly, January 24, 1992.
     