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Filing # 55646033 E-Filed 04/27/2017 09:04:12 AM
IN THE CIRCUIT COURT OF THE
TWELFTH JUDICIAL CIRCUIT IN AND
FOR SARASOTA COUNTY, FLORIDA
THE JOHN B. BUDNIK AND
ELIZABETH D. BUDNIK
REVOCABLE LIVING TRUST
DATED MARCH 9, 1992,
Plaintiff,
Vv. CASE NO.: 2017-CA-001525 NC
BILL FURST, as Sarasota County
Property Appraiser, and
LEON M. BIEGALSKI, as
Executive Director of the Florida
Department of Revenue,
Defendants.
DEFENDANT, DEPARTMENT OF REVENUE’S, MOTION TO DISMISS
Defendant, State of Florida Department of Revenue (Department), pursuant to Florida
Rules of Civil Procedure 1.100(b) and 1.140(b)(1) moves the Court to dismiss Plaintiff's
Complaint and, as grounds, the Department states:
I, Count Ill of Plaintiff's Complaint, asserting that Sections 196.031(5) and
196.161(1)(b), Florida Statutes, are unconstitutional, fails to state a cause of
action as a matter of law.
A. Plaintiff's facial constitutional challenge.
Plaintiff claims that Sections 196.031(5) and 196.161(1)(b) are unconstitutional on their
face because they impair a substantial and fundamental property right afforded by the Florida
Constitution in Article X, Section 4 to a person who holds legal title to real property in this state,
without substantive and procedural due process of law. Complaint, 4 37.
Filed 04/27/2017 09:12 AM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL(1) Plaintiff's facial constitutional challenge 1s time-barred under the
applicable Statute of Limitations:
Plaintiff's facial constitutional challenge is time-barred by the 4-year statute of
limitations set forth in Section 95.11(3)(p), Florida Statutes. Section 95.11(3)(p) is the “catch
all” subsection of the 4-year limitation period set forth in Section 95.11(3). This subsection has
been consistently applied to facial constitutional challenges, with the 4-year period commencing
when the legislation at issue was enacted. See, Milan Investment Group, Inc. v. City of Miami,
172 So.3d 458, 462 (Fla. 3d DCA 2015); Milan Investment Group, Inc., 50 So.3d 662, 664 (Fla.
3d DCA 2010); H & B Builders, Inc. v. City of Sunrise, 727 So.2d 1068 (Fla. 4th DCA 1999);
Fredrick vy. North Palm Beach County Improvement District, 971 So.2d 974 (Fla. 4th DCA
2008); City of Ft. Pierce v. Australian Props., LLC, 179 So.3d 426, 431 (Fla. 4th DCA 2008).
Section 196.031(5) was enacted by Chapter 2001-204, Laws of Florida 2001, and became
effective January 1, 2002. Complaint, 4 36. Section 196.161(1)(b) was enacted by Chapter 2002-
18, Laws of Florida 2002, and became effective January 1, 2003. Complaint, § 36. It is clear
from the face of the Complaint, therefore, that this action was filed beyond the four-year
limitation period applicable to facial constitutional challenges set forth in Section 95.11(3)(p),
Florida Statutes, and must be dismissed.
(i) Article X, Section 4 of the Florida Constitution does not provide an
exemption from ad valorem taxation.
The homestead exemption granted by Article X, Section 4 of the Florida Constitution is
an exemption from forced sale of property for the satisfaction of debt, and protection of property
for the benefit of heirs. The homestead provisions found in Article X are separate and distinctfrom those related to exemption from ad valorem taxation, which are found in Article VII.
Principles relating to one do not necessarily govern the other, and judicial pronouncements
concerning the homestead found in Article X are not applicable to the property tax homestead
exemption found in Article VII. Karayiannakis v. Nikolits, 23 So.3d 844 (Fla. 4" DCA 2009).
Plaintiff is challenging statutes that were enacted to implement the provisions of Article
VI, and not the provisions of Article X. This internal inconsistency of pleading creates a
repugnancy which renders the Complaint defective and subject to dismissal.’
Gil) Neither statute violates due process.
The Fourteenth Amendment to the United States Constitution provides that no state shall
“deprive any person of life, liberty, or property, without due process of law.” Article I, Section 9
of the Florida Constitution similarly provides that “no person shall be deprived of life, liberty or
property without due process of law.” The federal and state Due Process Clauses encompass both
substantive and procedural due process. See, e.g., Department of Law Enforcement v. Real
Property, 588 So.2d 957, 960 (Fla. 1991). “Substantive due process under the Florida
Constitution protects the full panoply of individual rights from unwarranted encroachment by the
government.” /d. The purpose of procedural due process is to “serve as a vehicle to ensure fair
treatment through the proper administration of justice where substantive rights are at issue.” /d.
Where a Plaintiff challenges the validity of a legislative act, and that act does not involve a
fundamental right, a substantive due process challenge is reviewed under a rational basis test.
City of Lauderhill v. Rhames, 864 So.2d 432, 437 (Fla. 4" DCA 2003) (citing, TRM, Inc. v.
United States, 52 F.3d 941, 945 (11™ Cir. 1995),
It 1s well settled that there is no fundamental right to a homestead tax exemption in
Florida. Horne v. Markham, 288 So.2d 196 (Fla. 1973). The homestead exemption from ad
' The same is true regarding Plaintiff's “as applied’ constitutional challenge.valorem taxation provided by Article VII, Section 6 of the Florida Constitution’ is not self-
executing. “Rather, it clearly provides that taxpayers who otherwise qualify shall be granted an
exemption only ‘upon establishment of right thereto in the manner prescribed by law.’” /d.,
at 199 (emphasis added). Whether the challenged statues violate due process, therefore, is
necessarily determined by application of the rational basis test.
The rational basis test used to analyze substantive due process claims is synonymous with
the reasonableness analysis of an equal protection claim. State v. Robinson, 873 So.2d 1205,
1214 (Fla. 2004). As the United States Supreme Court has held, “those attacking the rationality
of the legislative classification have the burden ‘to negative every conceivable basis which might
support it.” FCC vy. Beach Communications, 508 U.S., at 315, 113 S.Ct, at 2102 (quoting
Lehnhausen vy. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S.Ct. 1001, 1006 (1973)). The
Supreme Court has “many times” cautioned that the rational-basis review in an equal protection
analysis “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.”
Heller v. Doe by Doe, 509 U.S. 312, 319, 113 S.Ct. 2637, 2642 (1993). The Florida Supreme
Court has concurred:
We strongly adhere to the view that ‘the judiciary may not sit as a
superlegislature to judge the wisdom or desirability of legislative
policy determinations made in areas that neither affect fundamental
rights nor proceed along suspect lines.’ City of New Orleans vy.
Dukes, 427 U.S. 297 (1976). So long as the legislative measure 1s
rationally related to legitimate state interest, we must not substitute
our judgment for that of the legislature with respect to the need for,
or wisdom of, a legislative enactment. See State v. Bales, 343
So.2d 9 (Fla. 1977).
Fla. Patient’s Comp. Fund v. Von Stetina, 474 So. 2d 783, 789 (Fla. 1985).
The first step in determining whether legislation survives rational-basis scrutiny 1s
identifying a legitimate conceivable government purpose - a goal - which the enacting
* The constitutional provision necessarily implicated and properly considered in this case.government body could have been pursuing. Because there is no requirement for a legislature to
articulate reasons for the enactment of a statute, it is “entirely irrelevant for constitutional
purposes whether the conceived reason for the challenged distinction actually motivated the
legislature.” Beach Communications, 508 U.S. at 315, 113 S.Ct. at 2102, 2103; Panama City
Med. Diagnostic Ltd. v. Williams, 13 F.3d at 1546. Thus, in evaluating the rational basis for a
statute, it is “entirely permissible to rely on rationales that were not even considered or
contemplated by the legislature at the time of the statute’s passage.” Panama City, 13 F.3d at
1546.
In defending the constitutionality of its statute, a state “has no obligation to produce
evidence to sustain the rationality of a statutory classification.” Heller, 509 U.S., at 320, 113
S.Ct, at 2643. Thus, a legislative choice “is not subject to courtroom fact-finding and may be
based on rational speculation unsupported by evidence or empirical data.” Beach
Communications, 508 U.S., at 315, 113 S.Ct. at 2102. “If the classification has some ‘reasonable
299
basis,’” it does not offend the Constitution simply because the classification ‘is not made with
mathematical nicety or because in practice it results in some inequality.’” Dandridge vy. William,
397 US. 471, 485, 90 S.Ct. 1153, 1161 (1970) (citation omitted).
The second step of rational-basis scrutiny asks whether a rational basis exists for the
enacting governmental body to believe that the legislation would further the hypothesized
purpose. “The proper inquiry 1s concerned with the existence of a conceivably rational basis, not
whether that basis was actually considered by the legislative body.” Panama City, 13 F.3d at
1547.
Article VII, Section 6 of the Florida Constitution provides:
(a) Every person who has the legal or equitable title to real estate and maintains
thereon the permanent residence of the owner, or another legally or naturallydependent upon the owner, shall be exempt from taxation thereon, except
assessments for special benefits, up to the assessed valuation of twenty-five
thousand dollars and, for all levies other than school district levies, on the
assessed valuation greater than fifty thousand dollars and up to seventy-five
thousand dollars, upon establishment of right thereto in the manner prescribed by
law.
(b) Not more than one exemption shall be allowed any individual or family unit or
with respect to any residential unit.
Section 196.031(5) provides, in pertinent part:
A person who is receiving or claiming the benefit of an ad valorem tax exemption
or a tax credit in another state where permanent residency is required as a basis
for the granting of that ad valorem tax exemption or tax credit is not entitled to the
homestead exemption provided by this section. ...
Section 196.161(1)(b) provides:
In addition, upon determination by the property appraiser that for any year or
years within the prior 10 years a person who was not entitled to a homestead
exemption was granted a homestead exemption from ad valorem taxes, it shall be
the duty of the property appraiser making such determination to serve upon the
owner a notice of intent to record in the public records of the county a notice of
tax lien against any property owned by that person in the county, and such
property shall be identified in the notice of tax lien. Such property which 1s
situated in this state shall be subject to the taxes exempted thereby, plus a penalty
of 50 percent of the unpaid taxes for each year and 15 percent interest per annum.
However, 1f a homestead exemption 1s improperly granted as a result of a clerical
mistake or an omission by the property appraiser, the person improperly receiving
the exemption shall not be assessed penalty and interest. Before any such lien may
be filed, the owner so notified must be given 30 days to pay the taxes, penalties,
and interest.
Given that Article VU, Section 6 1s not self-executing and specifically contemplates
legislative enactment of criteria by which a taxpayer may qualify for the exemption, Horne vy.
Markham, supra, an obvious basis for the Legislature to enact Sections 196.031(5) and
196.161(1)(b) was to give effect to the limitation contained within Article VU, Section 6(b) that
“not more than one exemption shall be allowed any individual or family unit... .” Article VII,Section 6(b), Fla. Const. This satisfies both steps of the rational-basis inquiry. Furthermore, to
the extent the limitation contained within Article VII, Section 6(b) is designed to ensure the
establishment and preservation of a healthy tax base, the challenged statutes are rationally
designed to meet that goal. The challenged statutes, on their face, do not violate substantive due
process.
Likewise, the challenged statutes do not, on their face, violate procedural due process.
Like Article VII, Section 6, neither statute is self-executing. Rather, they each are part of an
overall statutory scheme implementing Article VII, Section 6, and they must be read in pari
materia to give them their full effect. Procedural due process 1s satisfied on the face of Section
196.161(1)(b) itself, in the last sentence, which provides, “Before any such lien may be filed, the
owner so notified must be given 30 days to pay the taxes, penalties, and interest.” Additional
procedural due process is provided by Section 194.171(1), Florida Statutes, which grants
jurisdiction to the circuit courts in “all matters relating to property taxation.” Where, as here, a
taxpayer has a right to challenge any adverse decision in circuit court, there 1s no deprivation of
due process. Bath Club, Inc. v. Dade County, 394 So.2d 110 (Fla. 1981).
B. Plaintiff's “as applied” constitutional challenge.
Plaintiff claims that Sections 196.031(5) and 196.161(1)(b) are unconstitutional, as
applied, because they require “the Property Appraiser to make factual determinations which
profoundly effect a fundamental constitutional right” (Complaint, 4 40) and, further, deny ‘a
permanent resident of Florida their right to procedural due process by the elimination of their
homestead exemption.....without first allowing for an opportunity to abate the technical violation
of Section 196.031(5).” Complaint, ¥ 41.Plaintiff's “as applied” constitutional challenge fails to state a cause of action as a matter
of law for the same reasons noted above regarding the facial constitutional challenge. In addition
to those considerations, the Property Appraiser must make the factual determinations Plaintiff
complains of because the homestead tax exemption provided in Article VII, Section 6 1s not self-
executing, and the constitutional provision specifically contemplates legislative enactment of
qualifying criteria. The constitutionality of Section 196.031(5) has been specifically upheld, and
the language of Section 196.031(5) found to be “grounded in the language of the constitutional
provision, namely Article VII, Section 6(b).” Endsley v. Broward County, 189 So.3d 938 (Fla. 4
DCA 2016), review denied 2016 WL 7163644, 2016). Finally, the opportunity to “abate the
technical violation of Section 196.031(5)” is provided on the face of Section 196.161(1)(b).
Absent an allegation that the Property Appraiser failed to provide Plaintiff the 30-day notice
contained therein, Plaintiff's Complaint fails to state a cause of action.
WHEREFORE, for the foregoing reasons, the Department respectfully requests that this
Court enter an order dismissing Count II of the Complaint, and granting such other and further
relief as this Court deems proper.Respectfully submitted,
PAMELA JO BONDI
ATTORNEY GENERAL
s/Robert P. Elson
ROBERT P. ELSON
Assistant Attorney General
Florida Bar No. 00543519
Office of the Attorney General
Revenue Litigation Bureau, PL-01, The Capitol
Tallahassee, Florida 32399-1050
Tel. (850) 414-3300
Primary: Robert.Elson@myfloridalegal.com
Secondary: Jon.Annette@myfloridalegal.com
Secondary: Lisa.Ryder@myfloridalegal.com
ATTORNEYS FOR DEFENDANT,
STATE OF FLORIDA
DEPARTMENT OF REVENUE
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy hereof was furnished by e-mail on
April 27, 2017, to: Morgan R. Bentley, Jr., Esquire, Amanda R. Kison, Esquire, Bentley &
Bruning, P.A., 783 South Orange Avenue, Suite 220, Sarasota, Florida 34236,
ibradley@bentleyandbruning.com, vengel(@bentleyandbruning.com
; John Geoffrey Pflugner,
Esquire, Jason A. Lessinger, Esquire, Icard Merrill Cullis Timm, et al., 32033 Main Street, Suite
600, Sarasota, Florida 34237, jpflugner@icardmerrill.com; Milan Brkich, Esquire, Assistant
County Attorney, 1660 Ringling Blvd., 2nd Floor, Sarasota, Florida 34236, mbrkich@scgov.net.
s/ Robert P. Elson
ROBERT P. ELSON
Preview
Filing # 55646033 E-Filed 04/27/2017 09:04:12 AM IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA THE JOHN B. BUDNIK AND ELIZABETH D. BUDNIK REVOCABLE LIVING TRUST DATED MARCH 9, 1992, Plaintiff, Vv. CASE NO.: 2017-CA-001525 NC BILL FURST, as Sarasota County Property Appraiser, and LEON M. BIEGALSKI, as Executive Director of the Florida Department of Revenue, Defendants. DEFENDANT, DEPARTMENT OF REVENUE’S, MOTION TO DISMISS Defendant, State of Florida Department of Revenue (Department), pursuant to Florida Rules of Civil Procedure 1.100(b) and 1.140(b)(1) moves the Court to dismiss Plaintiff's Complaint and, as grounds, the Department states: I, Count Ill of Plaintiff's Complaint, asserting that Sections 196.031(5) and 196.161(1)(b), Florida Statutes, are unconstitutional, fails to state a cause of action as a matter of law. A. Plaintiff's facial constitutional challenge. Plaintiff claims that Sections 196.031(5) and 196.161(1)(b) are unconstitutional on their face because they impair a substantial and fundamental property right afforded by the Florida Constitution in Article X, Section 4 to a person who holds legal title to real property in this state, without substantive and procedural due process of law. Complaint, 4 37. Filed 04/27/2017 09:12 AM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL(1) Plaintiff's facial constitutional challenge 1s time-barred under the applicable Statute of Limitations: Plaintiff's facial constitutional challenge is time-barred by the 4-year statute of limitations set forth in Section 95.11(3)(p), Florida Statutes. Section 95.11(3)(p) is the “catch all” subsection of the 4-year limitation period set forth in Section 95.11(3). This subsection has been consistently applied to facial constitutional challenges, with the 4-year period commencing when the legislation at issue was enacted. See, Milan Investment Group, Inc. v. City of Miami, 172 So.3d 458, 462 (Fla. 3d DCA 2015); Milan Investment Group, Inc., 50 So.3d 662, 664 (Fla. 3d DCA 2010); H & B Builders, Inc. v. City of Sunrise, 727 So.2d 1068 (Fla. 4th DCA 1999); Fredrick vy. North Palm Beach County Improvement District, 971 So.2d 974 (Fla. 4th DCA 2008); City of Ft. Pierce v. Australian Props., LLC, 179 So.3d 426, 431 (Fla. 4th DCA 2008). Section 196.031(5) was enacted by Chapter 2001-204, Laws of Florida 2001, and became effective January 1, 2002. Complaint, 4 36. Section 196.161(1)(b) was enacted by Chapter 2002- 18, Laws of Florida 2002, and became effective January 1, 2003. Complaint, § 36. It is clear from the face of the Complaint, therefore, that this action was filed beyond the four-year limitation period applicable to facial constitutional challenges set forth in Section 95.11(3)(p), Florida Statutes, and must be dismissed. (i) Article X, Section 4 of the Florida Constitution does not provide an exemption from ad valorem taxation. The homestead exemption granted by Article X, Section 4 of the Florida Constitution is an exemption from forced sale of property for the satisfaction of debt, and protection of property for the benefit of heirs. The homestead provisions found in Article X are separate and distinctfrom those related to exemption from ad valorem taxation, which are found in Article VII. Principles relating to one do not necessarily govern the other, and judicial pronouncements concerning the homestead found in Article X are not applicable to the property tax homestead exemption found in Article VII. Karayiannakis v. Nikolits, 23 So.3d 844 (Fla. 4" DCA 2009). Plaintiff is challenging statutes that were enacted to implement the provisions of Article VI, and not the provisions of Article X. This internal inconsistency of pleading creates a repugnancy which renders the Complaint defective and subject to dismissal.’ Gil) Neither statute violates due process. The Fourteenth Amendment to the United States Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” Article I, Section 9 of the Florida Constitution similarly provides that “no person shall be deprived of life, liberty or property without due process of law.” The federal and state Due Process Clauses encompass both substantive and procedural due process. See, e.g., Department of Law Enforcement v. Real Property, 588 So.2d 957, 960 (Fla. 1991). “Substantive due process under the Florida Constitution protects the full panoply of individual rights from unwarranted encroachment by the government.” /d. The purpose of procedural due process is to “serve as a vehicle to ensure fair treatment through the proper administration of justice where substantive rights are at issue.” /d. Where a Plaintiff challenges the validity of a legislative act, and that act does not involve a fundamental right, a substantive due process challenge is reviewed under a rational basis test. City of Lauderhill v. Rhames, 864 So.2d 432, 437 (Fla. 4" DCA 2003) (citing, TRM, Inc. v. United States, 52 F.3d 941, 945 (11™ Cir. 1995), It 1s well settled that there is no fundamental right to a homestead tax exemption in Florida. Horne v. Markham, 288 So.2d 196 (Fla. 1973). The homestead exemption from ad ' The same is true regarding Plaintiff's “as applied’ constitutional challenge.valorem taxation provided by Article VII, Section 6 of the Florida Constitution’ is not self- executing. “Rather, it clearly provides that taxpayers who otherwise qualify shall be granted an exemption only ‘upon establishment of right thereto in the manner prescribed by law.’” /d., at 199 (emphasis added). Whether the challenged statues violate due process, therefore, is necessarily determined by application of the rational basis test. The rational basis test used to analyze substantive due process claims is synonymous with the reasonableness analysis of an equal protection claim. State v. Robinson, 873 So.2d 1205, 1214 (Fla. 2004). As the United States Supreme Court has held, “those attacking the rationality of the legislative classification have the burden ‘to negative every conceivable basis which might support it.” FCC vy. Beach Communications, 508 U.S., at 315, 113 S.Ct, at 2102 (quoting Lehnhausen vy. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S.Ct. 1001, 1006 (1973)). The Supreme Court has “many times” cautioned that the rational-basis review in an equal protection analysis “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” Heller v. Doe by Doe, 509 U.S. 312, 319, 113 S.Ct. 2637, 2642 (1993). The Florida Supreme Court has concurred: We strongly adhere to the view that ‘the judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.’ City of New Orleans vy. Dukes, 427 U.S. 297 (1976). So long as the legislative measure 1s rationally related to legitimate state interest, we must not substitute our judgment for that of the legislature with respect to the need for, or wisdom of, a legislative enactment. See State v. Bales, 343 So.2d 9 (Fla. 1977). Fla. Patient’s Comp. Fund v. Von Stetina, 474 So. 2d 783, 789 (Fla. 1985). The first step in determining whether legislation survives rational-basis scrutiny 1s identifying a legitimate conceivable government purpose - a goal - which the enacting * The constitutional provision necessarily implicated and properly considered in this case.government body could have been pursuing. Because there is no requirement for a legislature to articulate reasons for the enactment of a statute, it is “entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature.” Beach Communications, 508 U.S. at 315, 113 S.Ct. at 2102, 2103; Panama City Med. Diagnostic Ltd. v. Williams, 13 F.3d at 1546. Thus, in evaluating the rational basis for a statute, it is “entirely permissible to rely on rationales that were not even considered or contemplated by the legislature at the time of the statute’s passage.” Panama City, 13 F.3d at 1546. In defending the constitutionality of its statute, a state “has no obligation to produce evidence to sustain the rationality of a statutory classification.” Heller, 509 U.S., at 320, 113 S.Ct, at 2643. Thus, a legislative choice “is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.” Beach Communications, 508 U.S., at 315, 113 S.Ct. at 2102. “If the classification has some ‘reasonable 299 basis,’” it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’” Dandridge vy. William, 397 US. 471, 485, 90 S.Ct. 1153, 1161 (1970) (citation omitted). The second step of rational-basis scrutiny asks whether a rational basis exists for the enacting governmental body to believe that the legislation would further the hypothesized purpose. “The proper inquiry 1s concerned with the existence of a conceivably rational basis, not whether that basis was actually considered by the legislative body.” Panama City, 13 F.3d at 1547. Article VII, Section 6 of the Florida Constitution provides: (a) Every person who has the legal or equitable title to real estate and maintains thereon the permanent residence of the owner, or another legally or naturallydependent upon the owner, shall be exempt from taxation thereon, except assessments for special benefits, up to the assessed valuation of twenty-five thousand dollars and, for all levies other than school district levies, on the assessed valuation greater than fifty thousand dollars and up to seventy-five thousand dollars, upon establishment of right thereto in the manner prescribed by law. (b) Not more than one exemption shall be allowed any individual or family unit or with respect to any residential unit. Section 196.031(5) provides, in pertinent part: A person who is receiving or claiming the benefit of an ad valorem tax exemption or a tax credit in another state where permanent residency is required as a basis for the granting of that ad valorem tax exemption or tax credit is not entitled to the homestead exemption provided by this section. ... Section 196.161(1)(b) provides: In addition, upon determination by the property appraiser that for any year or years within the prior 10 years a person who was not entitled to a homestead exemption was granted a homestead exemption from ad valorem taxes, it shall be the duty of the property appraiser making such determination to serve upon the owner a notice of intent to record in the public records of the county a notice of tax lien against any property owned by that person in the county, and such property shall be identified in the notice of tax lien. Such property which 1s situated in this state shall be subject to the taxes exempted thereby, plus a penalty of 50 percent of the unpaid taxes for each year and 15 percent interest per annum. However, 1f a homestead exemption 1s improperly granted as a result of a clerical mistake or an omission by the property appraiser, the person improperly receiving the exemption shall not be assessed penalty and interest. Before any such lien may be filed, the owner so notified must be given 30 days to pay the taxes, penalties, and interest. Given that Article VU, Section 6 1s not self-executing and specifically contemplates legislative enactment of criteria by which a taxpayer may qualify for the exemption, Horne vy. Markham, supra, an obvious basis for the Legislature to enact Sections 196.031(5) and 196.161(1)(b) was to give effect to the limitation contained within Article VU, Section 6(b) that “not more than one exemption shall be allowed any individual or family unit... .” Article VII,Section 6(b), Fla. Const. This satisfies both steps of the rational-basis inquiry. Furthermore, to the extent the limitation contained within Article VII, Section 6(b) is designed to ensure the establishment and preservation of a healthy tax base, the challenged statutes are rationally designed to meet that goal. The challenged statutes, on their face, do not violate substantive due process. Likewise, the challenged statutes do not, on their face, violate procedural due process. Like Article VII, Section 6, neither statute is self-executing. Rather, they each are part of an overall statutory scheme implementing Article VII, Section 6, and they must be read in pari materia to give them their full effect. Procedural due process 1s satisfied on the face of Section 196.161(1)(b) itself, in the last sentence, which provides, “Before any such lien may be filed, the owner so notified must be given 30 days to pay the taxes, penalties, and interest.” Additional procedural due process is provided by Section 194.171(1), Florida Statutes, which grants jurisdiction to the circuit courts in “all matters relating to property taxation.” Where, as here, a taxpayer has a right to challenge any adverse decision in circuit court, there 1s no deprivation of due process. Bath Club, Inc. v. Dade County, 394 So.2d 110 (Fla. 1981). B. Plaintiff's “as applied” constitutional challenge. Plaintiff claims that Sections 196.031(5) and 196.161(1)(b) are unconstitutional, as applied, because they require “the Property Appraiser to make factual determinations which profoundly effect a fundamental constitutional right” (Complaint, 4 40) and, further, deny ‘a permanent resident of Florida their right to procedural due process by the elimination of their homestead exemption.....without first allowing for an opportunity to abate the technical violation of Section 196.031(5).” Complaint, ¥ 41.Plaintiff's “as applied” constitutional challenge fails to state a cause of action as a matter of law for the same reasons noted above regarding the facial constitutional challenge. In addition to those considerations, the Property Appraiser must make the factual determinations Plaintiff complains of because the homestead tax exemption provided in Article VII, Section 6 1s not self- executing, and the constitutional provision specifically contemplates legislative enactment of qualifying criteria. The constitutionality of Section 196.031(5) has been specifically upheld, and the language of Section 196.031(5) found to be “grounded in the language of the constitutional provision, namely Article VII, Section 6(b).” Endsley v. Broward County, 189 So.3d 938 (Fla. 4 DCA 2016), review denied 2016 WL 7163644, 2016). Finally, the opportunity to “abate the technical violation of Section 196.031(5)” is provided on the face of Section 196.161(1)(b). Absent an allegation that the Property Appraiser failed to provide Plaintiff the 30-day notice contained therein, Plaintiff's Complaint fails to state a cause of action. WHEREFORE, for the foregoing reasons, the Department respectfully requests that this Court enter an order dismissing Count II of the Complaint, and granting such other and further relief as this Court deems proper.Respectfully submitted, PAMELA JO BONDI ATTORNEY GENERAL s/Robert P. Elson ROBERT P. ELSON Assistant Attorney General Florida Bar No. 00543519 Office of the Attorney General Revenue Litigation Bureau, PL-01, The Capitol Tallahassee, Florida 32399-1050 Tel. (850) 414-3300 Primary: Robert.Elson@myfloridalegal.com Secondary: Jon.Annette@myfloridalegal.com Secondary: Lisa.Ryder@myfloridalegal.com ATTORNEYS FOR DEFENDANT, STATE OF FLORIDA DEPARTMENT OF REVENUE CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy hereof was furnished by e-mail on April 27, 2017, to: Morgan R. Bentley, Jr., Esquire, Amanda R. Kison, Esquire, Bentley & Bruning, P.A., 783 South Orange Avenue, Suite 220, Sarasota, Florida 34236, ibradley@bentleyandbruning.com, vengel(@bentleyandbruning.com ; John Geoffrey Pflugner, Esquire, Jason A. Lessinger, Esquire, Icard Merrill Cullis Timm, et al., 32033 Main Street, Suite 600, Sarasota, Florida 34237, jpflugner@icardmerrill.com; Milan Brkich, Esquire, Assistant County Attorney, 1660 Ringling Blvd., 2nd Floor, Sarasota, Florida 34236, mbrkich@scgov.net. s/ Robert P. Elson ROBERT P. ELSON