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Filing # 113338345 E-Filed 09/14/2020 04:26:57 PM
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
RAUL MEJIA, and VIRGINIA LOPEZ,
Plaintiffs,
v. Case No. 2018-CA-012371
PEDRO GARCIA, as Property Appraiser
of Miami-Dade County; LEON M.
BIEGALSKI, as Executive Director of
the Florida Department of Revenue; MARCUS
SAIZ DE LA MORA, as Tax Collector of
Miami-Dade County,
Defendants.
______________________________________/
DEFENDANT EXECUTIVE DIRECTOR’S
ANSWER TO THIRD AMENDED COMPLAINT
Defendant Jim Zingale, as Executive Director of the Florida Department of Revenue (“the
Department”) 1, by and through undersigned counsel, responds to the allegations contained in the
Third Amended Complaint served by Raul Mejia and Virginia Lopez (“Plaintiffs”), deemed filed
on August 26, 2020, and states as follows.
Nature of the Case
1. Admitted.
Parties
2. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 2.
3. Admitted.
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Jim Zingale was named Executive Director of the Florida Department of Revenue on January
29, 2019. Pursuant to Florida Rule of Civil Procedure 1.260(d)(1), Dr. Zingale is automatically
substituted as a party to this action.”
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4. Admitted.
5. Admitted.
Jurisdiction
6. The Department admits that if all jurisdictional prerequisites have been met,
jurisdiction is proper in the circuit court, but is without knowledge sufficient to admit or deny
whether all such requirements have been met. Chapter 194, Florida Statutes, Article V, sections 5
and 20 of the Constitution of the State of Florida, and section 86.011, Florida Statutes, speak for
themselves.
Venue
7. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 7.
General Allegations
8. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 8.
9. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 9.
10. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 10.
11. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 11.
12. The Department admits that Exhibit “A” is attached to the Third Amended
Complaint and speaks for itself. The Department is without knowledge sufficient to admit or deny
the remaining allegations contained in paragraph 12.
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13. The Department admits that Exhibit “C” is attached to the Third Amended
Complaint and speaks for itself. The Department is without knowledge sufficient to admit or deny
the remaining allegations contained in paragraph 13.
14. The Department admits that Exhibits “B” and “D” are attached to the Third
Amended Complaint and speak for themselves. The Department is without knowledge sufficient
to admit or deny the remaining allegations contained in paragraph 14.
15. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 15, inclusive of subparagraphs a-b.
16. The Department is without knowledge sufficient to admit or deny the allegations
contained in paragraph 16.
17. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 17.
18. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 18.
19. The Department admits the first sentence of Paragraph 19. The Department admits
the second sentence of Paragraph 19, but denies that Plaintiffs are entitled to any relief from the
Department. Exhibit “J” speaks for itself.
20. Denied.
21. The Department admits that Exhibit “E” is attached to the Third Amended
Complaint and speaks for itself. The Department is without knowledge sufficient to admit or deny
the remaining allegations contained in Paragraph 21.
22. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 22.
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23. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 23.
24. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 24.
25. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 25.
26. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 26.
27. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 27.
28. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 28.
29. Denied as stated. The Department has not “taken affirmative action against
Plaintiffs by placing a lien against their property.” The Department is without knowledge
sufficient to admit or deny the remaining allegations contained in paragraph 29.
30. Denied as stated. The Department has not placed a lien against the Plaintiffs’
property. The Department is without knowledge sufficient to admit or deny the remaining
allegations contained in paragraph 30.
31. Denied as stated. The Department has not “demanded that Plaintiffs pay the Liens.”
The Department is without knowledge sufficient to admit or deny the remaining allegations
contained in paragraph 31.
32. The Department is without knowledge sufficient to admit or deny the allegations
contained in paragraph 32.
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33. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 33.
34. Section 86.011, Florida Statutes, speaks for itself.
35. Section 86.051, Florida Statutes, speaks for itself.
36. Section 86.111, Florida Statutes, speaks for itself.
37. Section 86.101, Florida Statutes, speaks for itself.
38. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 38.
39. The Department admits that Exhibits “E,” “F,” and “G” are attached to the Third
Amended Complaint and speak for themselves. The Department is without knowledge sufficient
to admit or deny the remaining allegations contained in Paragraph 39, inclusive of subparagraphs
a-c.
40. The Department admits that Exhibit “K” is attached to the Third Amended
Complaint and speaks for itself. The Department is without knowledge sufficient to admit or deny
the remaining allegations contained in Paragraph 40.
41. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 41.
42. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 42.
COUNT I – Removal of Tax Lien
(As to Tax Years 2014 through 2016)
43. The Department realleges and restates its answers to Paragraphs 1 through 42 as if
fully set forth herein.
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44. The Department admits that Exhibits “A” through “D,” “H,” and “I” are attached
to the Third Amended Complaint and speak for themselves. The Department is without knowledge
sufficient to admit or deny the remaining allegations contained in Paragraph 44.
45. Exhibits “A” and “B” speak for themselves. The Department is without knowledge
sufficient to admit or deny the remaining allegations contained in Paragraph 45.
46. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 46.
47. Section 196.161, Florida Statutes, speaks for itself.
48. Sections 196.061 and 196.193(3) and (4), Florida Statutes, and Florida Attorney
General Opinion 2008-13 speak for themselves. The Department is without knowledge sufficient
to admit or deny the remaining allegations contained in paragraph 48.
49. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 49.
50. The Department is without knowledge sufficient to admit or deny the allegations
contained in paragraph 50.
51. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 51.
COUNT II - Removal of Tax Lien Interest and Penalties
(As to Tax Years 2014-2016)
52. The Department realleges and restates its answers to Paragraphs 1 through 42 as if
fully set forth herein.
53. The Department admits that Exhibits “A” through “D,” “H,” and “I” are attached
to the Third Amended Complaint and speak for themselves. The Department is without knowledge
sufficient to admit or deny the remaining allegations contained in Paragraph 53.
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54. Section 196.161, Florida Statutes, speaks for itself. The Department is without
knowledge sufficient to admit or deny the remaining allegations contained in Paragraph 54.
55. Sections 196.061 and 196.193(3) and (4), Florida Statutes, and Florida Attorney
General Opinion 2008-13 speak for themselves. The Department is without knowledge sufficient
to admit or deny the remaining allegations contained in Paragraph 55.
56. Section 196.011(9)(a), Florida Statutes, speaks for itself.
57. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 57.
58. The Department admits that Exhibits A and B are attached to the Third Amended
Complaint and speak for themselves. The Department is without knowledge sufficient to admit or
deny the remaining allegations contained in Paragraph 58.
59. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 59.
60. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 60.
61. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 61.
62. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 62.
63. Section 196.161, Florida Statutes, speaks for itself. The Department is without
knowledge sufficient to admit or deny the remaining allegations contained in Paragraph 63.
64. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 64.
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65. The decision of Mitchell v. Higgs, 61 So. 3d 1152 (Fla. 3rd DCA 2011) speaks for
itself.
66. Section 196.161(3), Florida Statutes, speaks for itself. The Department is without
knowledge sufficient to admit or deny the remaining allegations contained in Paragraph 66.
67. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 67.
68. Section 196.161(1)(b), Florida Statutes, speaks for itself.
69. Sections 196.161(1)(b) and 196.161(3), Florida Statutes, speak for themselves.
The Department is without knowledge sufficient to admit or deny the remaining allegations
contained in Paragraph 69.
70. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 70.
71. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 71.
72. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 72.
73. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 73.
74. Section 196.161(1)(b), Florida Statutes, speaks for itself. The Department is
without knowledge sufficient to admit or deny the remaining allegations contained in Paragraph
74.
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COUNT III - Removal of 2016 Recapture Tax, Interest and Penalties and
Overassessment for Tax Year 2017
75. The Department realleges and restates its answers to Paragraphs 1 through 42 as if
fully set forth herein.
76. Section 196.161, Florida Statutes, speaks for itself. The Department is without
knowledge sufficient to admit or deny the remaining allegations contained in Paragraph 76.
77. Section 193.1554(3), Florida Statutes, speaks for itself.
78. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 79.
79. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 79.
80. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 80.
COUNT IV – Portability of Homestead from 2012 to 2014 Tax Years
81. The Department realleges and restates its answers to Paragraphs 1 through 42 as if
fully set forth herein.
82. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 82.
83. Exhibit “E” speaks for itself. The Department is without knowledge sufficient to
admit or deny the remaining allegations contained in Paragraph 83.
84. Admitted.
85. Admitted.
86. Article VII, section 4(d)(8)(a), Florida Constitution, speaks for itself.
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87. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 87.
88. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 88.
89. Any allegation in the Third Amended Complaint not specifically addressed by a
numbered paragraph in this Answer is hereby denied.
DEFENSES
First Defense: No Entitlement to Attorney’s Fees.
Plaintiffs may not recover an award of attorney’s fees against the Department, because they
have failed to provide the Department of Financial Services with notice of the suit as required by
section 284.30, Florida Statutes, and has failed to plead compliance with section 284.30. See
Heredia v. Dep’t of Hwy. Safety and Motor Vehicles, 547 So. 2d 1007, 1008 (Fla. 3d DCA 1989);
Hale v. Dep’t of Revenue, 973 So. 2d 518, 522 (Fla. 1st DCA 2008).
Second Defense: Plaintiffs fail to state a cause of action
against the Department for which this Court can grant relief
In their Third Amended Complaint, Plaintiffs have requested injunctive relief in the form
of “requiring the DOR to properly oversee Appraiser by recommending to the Auditor General of
the State of Florida an audit of the retroactive exemption tax liens imposed by the Miami-Dade
County Appraiser for Tax years 2011 through 2016, inclusive, and to monitor the imposition of
such liens in the future in order to limit such liens to those supported by law and fact.” An order
providing such relief would violate the doctrine of separation of powers. Such an order would
encroach upon exclusive powers that the Legislature has delegated to the Department, which is an
executive branch agency. See, e.g., Key Haven Associated Enterprises, Inc. v. Bd. of Trustees of
the Internal Improvement Trust Fund, 427 So. 2d 153, 157 (Fla. 1982) (“Judicial intervention in
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the decision-making function of the executive branch must be restrained in order to support the
integrity of the administrative process and to allow the executive branch to carry out its
responsibilities as a co-equal branch of government.”).
As a matter of law, the Department has no duty to the Plaintiffs, regarding its property
appraiser oversight functions, greater than the duty which the Department owes to the public at
large. See, e.g., Trianon Park Condo. Ass’n, Inc. v. City of Hialeah, 468 So. 2d 912, 917 (Fla.
1985) (holding that how a governmental entity, through its officials and employees, exercises its
discretionary power to enforce compliance with the laws duly enacted by governmental body is
matter of governance, for which there never has been a common-law duty of care).
Third Defense: Plaintiffs lack standing to request relief on behalf of other taxpayers.
In their Third Amended Complaint, Plaintiffs have requested injunctive relief in the form
of “requiring the DOR to properly oversee Appraiser by recommending to the Auditor General of
the State of Florida an audit of the retroactive exemption tax liens imposed by the Miami-Dade
County Appraiser for Tax years 2011 through 2016, inclusive, and to monitor the imposition of
such liens in the future in order to limit such liens to those supported by law and fact.” In essence,
the Plaintiffs are requesting relief on behalf of other taxpayers. Pursuant to section 194.181,
Florida Statutes, Plaintiffs lack standing to request relief on behalf of other taxpayers. In order
for a Plaintiff to bring suit they must be an owner or taxpayer of record for the subject property.
Plaintiffs have failed to attach documentation that Plaintiffs have written permission from the
actual property owners of the properties for which they seek relief as required by Florida Rule of
Civil Procedure 1.130, and section 194.181, Florida Statutes.
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MOTION TO STRIKE DEMAND FOR JURY TRIAL
This is an action contesting the imposition of a tax lien for the years 2009 through 2017
and the denial of an ad valorem tax exemption for tax years 2018 and 2019, brought in part under
section 194.171, Florida Statutes. In such an action there is no right to a jury trial. In the case of
Section 3 Prop. Corp. v. Robbins, 632 So. 2d 596 (Fla. 1993), the Florida Supreme Court addressed
the right to a jury trial in an ad valorem tax case concerning the grant of an agricultural exemption.
The Court noted that “[t]raditionally, controversies surrounding the taxation of real property have
sounded in equity, not law.” Section 3 Prop. Corp., 632 So. 2d at 596 (citing Powell v. Kelly, 223
So. 2d 305 (Fla. 1969); Day v. City of St. Augustine, 139 So. 880 (1932); City of Tampa v. Palmer,
105 So. 115 (1925)). In holding that no right to a jury trial exists in such a case, the Court reasoned:
The determination of whether land is agricultural in nature and thus
eligible for a lower tax base, even though requiring a factual
determination, is akin to determining interests in land and invokes
the equitable jurisdiction of the court. Thus, these cases are still
persuasive for the proposition that no constitutional right to a jury
trial in this type of action exists.
Clearly the legislature has not afforded a jury trial in a tax
assessment challenge. Had it intended to grant such a right, it could
have done so with clear and unambiguous language. The mere fact
that section 194.171 proclaims that the circuit courts have original
jurisdiction at law of all matters relating to taxes does not evidence
the legislature’s intent to mandate jury trials in ad valorem tax
assessment cases. The entire statutory tax procedures dictate
otherwise.
Section 3 Prop. Corp., 632 So. 2d at 596-97 (emphasis supplied). The same logic applies to the
instant case. Accordingly, the Plaintiffs are not entitled to a jury trial.
WHEREFORE, Defendant Jim Zingale, as Executive Director of the Florida Department
of Revenue, requests entry of judgment in his favor, an award of costs, and such other relief as
deemed appropriate.
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RESPECTFULLY SUBMITTED this 14th day of September, 2020.
ASHLEY MOODY
ATTORNEY GENERAL
S/Timothy E. Dennis
TIMOTHY E. DENNIS
Chief Assistant Attorney General
Florida Bar No. 575410
Office of the Attorney General
Revenue Litigation Bureau
PL-01, The Capitol
Tallahassee, FL 32399-1050
(850) 414-3300
Primary Email:
Timothy.Dennis@myfloridalegal.com
Secondary Emails:
Jon.Annette@myfloridalegal.com
Rebecca.Padgett@myfloridalegal.com
Counsel for Defendant
Jim Zingale, Executive Director
Florida Department of Revenue
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by
e-mail to Andre′ A. Gibson, Esquire, 45 NE 67th Street, North Miami Beach FL 33162,
AAGibson@Gibsontaxlaw.com, Efile@Gibsontaxlaw.com (Counsel for the Plaintiffs); and
Michael J. Mastrucci, Esquire, Assistant County Attorney, Stephen P. Clark Center, Suite 2810,
111 Northwest First Street, Miami, Florida 33128, mastrucc@miamidade.gov,
wilma.morillo@miamidade.gov (Counsel for Property Appraiser and Tax Collector), on this 14th
day of September, 2020.
S/Timothy E. Dennis
TIMOTHY E. DENNIS
Chief Assistant Attorney General
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