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Filing # 111672153 E-Filed 08/12/2020 12:50:56 PM
IN THE CIRCUIT COURT OF THE ELEVENTH
JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CIVIL ACTION
RAUL MEJIA, and VIRGINIA LOPEZ
Plaintiffs,
CASE NO.: 2018-12371-CA
vs. DIVISION:
PEDRO GARCIA, as Property Appraiser of
Miami Dade County Florida; LEON M.
BIEGALSKI, as Executive Director of
Florida Department of Revenue; MARCUS
SAIZ DE LA MORA, as Tax Collector of
Miami Dade County, Florida
Defendants.
/
PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINT
Plaintiffs, Raul Mejia and Virginia Lopez, (hereinafter, “Plaintiffs”) by and through
their undersigned counsel, pursuant to Fla. R. Civ. P. 1.190(a) and hereby moves this Court
for leave to file a Third Amended Complaint and as basis states as follows:
1. Plaintiffs filed their original complaint on April 17, 2018 and amended the same on
May 17, 2018 to correct the name of Defendant, Property Appraiser.
2. Plaintiffs requested permission to file a Second Amended Complaint to add a fourth
cause of action, to amend the general allegations with additional facts to support the new
cause of action.
3. Since the last amendment, Plaintiff has undertaken discovery and taken the
deposition of several of Defendants’ agents. During the course of discovery and since the
second amended complaint, Plaintiffs discovered several facts and there have been some
factual developments, which although does not eliminate any of the existing causes of action,
are sufficient to warrant the facts upon which the causes of actions are based.
4. This action is not set for trial and Defendants have not conducted any discovery. As
Page 1 of 3such, the proposed Third Amended Complaint (attached as Exhibit "A") will not cause any
undue delay nor otherwise prejudice Defendants.
5. Rule 1.190, Florida Rules of Civil Procedure, states that “Leave of court [to amend]
shall be given freely when justice so requires.” In the instant case, the basis for the proposed
amendment to add Count IV arose from the facts already in Defendants’ possession and
discovered by Plaintiffs during discovery from the Defendants.
GOOD FAITH CERTIFICATION
The undersigned certifies that on behalf of the Plaintiff, that the amendment sought
by this motion is being sought in good faith and not for the purpose of delay.
Wherefore, the Plaintiff's respectfully requests that this Honorable Court enter an
order Granting the Motion; Deeming the Third Amended Complaint filed as of the date of the
Order; and Directing Defendants to respond to the Third Amended Complaint within ten
days of the date of the Order, and any other relief this Court deems proper.
Respectfully submitted,
ANDRE GIBSON, CHARTERED
Andre A. Gibson
Attorney for Plaintiffs, Virginia and Raul Mejia
Florida Bar Number: 0635529
45 NE 67th Street,
North Miami Beach, FL 33162
Telephone: (805) 652-4900
E-Mail: AAGibson@Gibsontaxlaw.com
Secondary E-Mail: Efile@Gibsontaxlaw.com
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been furnished via electronic
mail to Timothy Dennis at Timothy. Dennis@myfloridalegal.com,
Jon.Annette@myfloridalegal.com, Rebecca.Padgett@myfloridalegal.com; and Michael
Page 2 of 3Mastrucci, Assistant County Attorney, mastrucc@miamidade.gov; emily@miamidade.gov,
this 12t» day of August, 2020.
4 AST Se
André A. Gibson
Attorney for Plaintiffs
Page 3 of 3IN THE CIRCUIT COURT OF THE ELEVENTH
JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CIVIL ACTION
RAUL MEJIA, and VIRGINIA LOPEZ
Plaintiffs,
CASE NO.: 2018-12371-CA
vs. DIVISION:
PEDRO GARCIA, as Property Appraiser of
Miami Dade County Florida; LEON M.
BIEGALSKI, as Executive Director of
Florida Department of Revenue; MARCUS
SAIZ DE LA MORA, as Tax Collector of
Miami Dade County, Florida
Defendants.
/
THIRD AMENDED COMPLAINT FOR DECLARATORY AND OTHER RELIEF
COMES NOW Plaintiffs, RAUL MEJIA (hereinafter, MEJIA) and VIRGINIA LOPEZ
(hereinafter, LOPEZ), as Joint Tennant with Rights of survivorship, (hereinafter,
“PLAINTIFFS’”) and sues Defendants, PEDRO GARCIA, as Property Appraiser of Miami
Dade County Florida, (hereinafter “Appraiser’); LEON M. BIEGALSKI, as Executive
Director of Florida Department of Revenue, (hereinafter, “DOR”); and MARCUS SAIZ DE LA
MORA, as Tax Collector of Miami Dade County, Florida (hereinafter, “Collector”); the
Collector, DOR, and Appraiser are hereinafter jointly referred to as Defendants, and allege:
NATURE OF THE CASE
1. This is an action for a declaratory judgment and to challenge the removal and refusal
to reinstate of a homestead and Senior Citizen exemptions (hereinafter, “Exemptions”) and
imposition of retroactive tax liens on property in Miami-Dade County, Florida.
PARTIES
2. Plaintiffs, MEJIA and LOPEZ, at all times relevant, are the owners of certain real
property located at 201 178th Drive, unit 531, Sunny Isles, Florida 33160-2875, and identified
Page 1 of 18as Parcel No. 81-2211-089-1220 (“Subject Property”), which was classified and assessed as
owner-occupied residential property in tax year 2005 through 2016.
8. Appraiser is sued herein in his official capacity and is a necessary party to this action
pursuant to section 194.181(2), Florida Statutes.
4. Collector is sued herein in his official capacity and is a necessary party to the action
pursuant to section 194.181(8), Florida Statutes.
5. Defendant, LEON M. BIEGALSKI, is sued herein in his official capacity and is a
necessarily party to the action pursuant to section 194.181(5), Florida Statutes.
JURISDICTION
6. This Court has jurisdiction pursuant to Chapter 194, Florida Statutes, article V,
sections 5 and 20 of the Florida Constitution, and section 86.011, Florida Statutes.
VENUE
7. Venue is appropriate in this Court pursuant to Fla. Stat. Sections 47.011, and 47.021.
GENERAL ALLEGATIONS
8. Plaintiffs jointly owned the Subject Property from 2005 through and including the
present which consisted of a single residential or family unit and made it their permanent
residence.
9. Except for tax year 2018, from 2005 through and including present, Plaintiffs have
occupied and used the Subject Property predominantly or exclusively as their homestead.
10. Plaintiffs applied for and received a homestead exemption on the subject in 2005
which was automatically renewed through 2012; however, on or about August 29, 2018,
MEJIA visited Appraiser’s office and informed them that the property was rented from April
2012 to April 2018 and sought to renew and reapply for the homestead exemption to
commence tax year 2014.
11. While at Appraiser’s office, MEJIA was informed that he may be eligible for a Senior
Page 2 of 18Citizen Exemption. The agent assisted MEJIA with completing the forms. MEJIA had no
intent to seek an exemption for 2018, however, the Agent completed the form as a late
application for exemption.
12. On December 5, 2016, Appraiser determined that Plaintiffs “were not entitled to the
Homestead Exemption” on the Subject Property and issued a Notice of Intent to Lien the
subject property for tax years 2011 through 2015. See Exhibits A attached hereto
13. Upon Plaintiffs contest of the determination and Notice of Intent to Lien for tax years
2011 through 2015, Appraiser reversed its position with respect to tax years 2011 and 2012,
but maintained their position with respect to tax years 2018 through 2015. See Exhibit C
attached hereto
14. Again, on July 3, 2017, Appraiser determined that Plaintiffs “were not entitled to the
Homestead Exemption” and issued a Notice of Intent to Lien the subject property for tax
years 2016. See Exhibits B and D attached hereto
15. Appraiser’s basis for the retroactive cancellation of the exemptions is:
a. For tax year 2013 Appraiser states that based on a rental contract produced by
Plaintiff to Appraiser, the property was not being used as a homestead.
b. For tax years 2014 through 2016 Appraiser orally stated that Plaintiffs failed to
reapply for the exemptions which was removed in 2013; however, the DR-453
forms supplied by Appraiser states that the retroactive tax liens were the result
of “Rental of Homestead.”
16. Wholly absent from Appraiser's records which preceded the filing of the retroactive
liens for tax years 2014 through 2016, is any evidence whatsoever that Plaintiffs were not in
continuous permanent residence of the Subject Property between January 1, 2014 and
January 1, 2016, inclusive.
17. Present in Appraiser’s own records is evidence that MEJIA visited Appraiser’s office
Page 3 of 18in August 2018 to affirm their residence and use of the property as their homestead in an
effort to obtain a Senior Exemption. Thus, even if Plaintiffs lost their homestead exemption
as at January 1, 2018, their subsequent application for the Senior Exemption on August 29,
2018 re-established their homestead exemption for all subsequent years.
18. Appraiser’s own records demonstrate the absence of any inquiry whatsoever whether
Plaintiffs moved from the Subject Property with no intent of returning for tax years 2014
through 2016. Appraiser's records contain not a scintilla of evidence that the Subject Property
ceased to be Plaintiffs’ permanent residence for Tax years 2011, 2012, 2014 through 2016.
The retroactive lien is erroneous and unauthorized by sections 196.161(1)(b), Florida
Statutes.
19. Appraiser administers property taxes, including assessment, tax collection, and
dispute resolution. DOR provides oversight to Appraiser’s administration of property taxes.
DOR oversees Appraiser’s compliance with constitutional and statutory requirements for
property valuation, property classification and exemptions, Truth in Millage (TRIM) and
millage levying, refunds and tax certificate cancellations, value adjustment board
proceedings, and annual budgets. See Exhibit J attached hereto
20. As the oversight Agency, DOR failed to properly oversee Appraiser’s Retroactive Tax
Liens which denies Plaintiffs of their constitutional homestead and senior exemptions
without evidence to establish an abandonment had occurred or despite evidence that an
abandonment had not occurred. This lack of oversight caused injury to Plaintiffs in the loss
of their constitutional homestead and senior exemptions.
21. Plaintiffs do not contest the cancellation of the exemptions for tax year 2013 and as
such has paid the Retroactive Tax; however, Plaintiffs maintain that the levy of interest and
penalties for tax year 2013 is not supported by law and the facts. See Exhibit E attached
hereto
Page 4 of 1822. On or about August 29, 2018 when MEJIA visited Appraiser’s office and applied for
Senior Citizenship Exemptions pursuant to Fla. Stat. 196.075 in addition to notifying
Appraiser of the loss of 2018 exemption and seeking to apply for the 2014 homestead
exemption. This Senior Citizen Exemption application necessarily accompanied and
required that the Subject Property be declared the homestead.
23. Appraiser granted retroactive benefits to the Senior Citizenship Exemption
application for tax year 2018 and future years although MEJIA informed them of the loss of
Homestead for 2013 and sought only 2014 forward.
24. As at April 17, 2018, the subject property was no longer under contract for rental and
was being used as Plaintiffs’ homestead which entitled them to exemptions for tax years 2014
through present.
25. The application for senior citizenship exemption on August 29, 2018, was timely for
tax year 2014.
26. Plaintiffs own no other property on which to claim or receive a homestead exemption
or Senior Citizen Exemption in the state of Florida or any other state.
27. Plaintiffs have provided the Defendants with all documents to establish that the
subject property is their homestead, yet Appraiser maintains the same position that the
subject property is being rented and that the taxpayers have failed to provide statutory
evidence that the Subject Property is their permanent address. Appraiser
28. An actual case and controversy exist between the parties that this Court may be
adjudicate.
29. The Defendants have taken affirmative action against Plaintiffs by placing a lien
against their property, and depriving Plaintiffs of their constitutional property exemptions
right.
30. Plaintiffs have a reasonable apprehension that it will suffer irreparable injury if the
Page 5 of 18Defendants does not release the lien against their property because interest continues to
accrue and the property is in jeopardy of eventual sale by the defendants to satisfy the liens.
31. Defendants demanded that Plaintiffs pay the Liens (including interest and penalties)
resulting from the removal of Exemptions, to which Exemptions Plaintiffs are entitled.
32. Plaintiffs have a real and reasonable apprehension that if they should fail to pay the
Lien they will be penalized by the Defendants and their homestead Property would be taken
and used to satisfy said Lien.
33. The Declarations sought herein is necessary and appropriate under the circumstances
in order that Plaintiffs may ascertain Exemptions and portability of exemptions to which
they are entitled and the correct. amount of recapture tax, penalties and interest, if any,
permissible by law.
34. Section 86.011 this Court has jurisdiction to declare the existence or nonexistence of
any fact upon which the existence or nonexistence of an immunity, power, privilege, or right
does or may depend, whether such immunity, power, privilege, or right now exists or will
arise in the future.
35. Section 86.051 allows this Court to render a declaratory judgment by way of
anticipation with respect “to any act not yet done or any event which has not yet happened.”
36. Section 86.111 also permits “a speedy hearing of an action for declaratory judgment”
and the Court “may advance it on the calendar.”
37. Section 86.101 provides that this Court has jurisdiction to address the instant matter
to settle and to afford relief from insecurity and uncertainty with respect to rights, status,
and other equitable or legal relations.
38. The failure to stop the Defendant’s past and present course of conduct as set forth
herein would be to endorse an injustice and loss of Plaintiffs property, and monies paid under
protest so as to establish standing for this action.
Page 6 of 1839. Prior to instituting this action, Plaintiffs:
a. Paid under protest the entire recapture tax levy with interest and penalties for tax
year 2013; See Exhibit E attached hereto
b. Paid under protest the amount of the recapture tax for tax years 2014 through
2016 as good faith payment which exceeds the amount the recapture tax when the
exemptions are reinstated and/or the amount of interest and penalties are
removed; See Exhibit F attached hereto
c. Paid the 2017 tax bill under protest. See Exhibit G attached hereto
AO. Plaintiffs’ mortgage company subsequently paid the balances on the homestead
penalty and liens in full which Plaintiffs are required to repay. As a result, the Property
Appraiser filed and recorded a satisfaction of tax liens for each of the tax years at issue in
this action. See Exhibit K attached hereto.
41. Plaintiffs maintain their claim that the tax liens were improper and he right to be
repaid for the amounts in satisfaction thereof.
42. All conditions precedent to filing this suit have been met.
COUNT I - REMOVAL OF TAX LIEN
(As to Tax Years 2014 through 2016)
43. Plaintiffs reassert and reaffirms the allegations of paragraphs 1 through 42 as if fully
set forth herein, and further states:
44. On December 5, 2016 and July 3, 2017, Appraiser sent Plaintiffs a Notice of Intent to
File Lien (hereinafter “Lien Notices”) notifying them that the homestead and senior
citizenship exemptions on the Subject Property would be retroactively removed for the 2011-
2015 and 2016 tax years respectively. Copies of the Liens are attached hereto as Exhibits A
through D, H and I.
45. The Lien Notices stated that the reason for the removal of the Exemptions was due to
Page 7 of 18rental of the homestead. See Exhibit A at 2, and Exhibit B at 2
46. Consistent with the Lien Notices, Appraiser and Collector recorded the tax liens
against the Subject Property alleging that the same arose from rental of homestead.
47. Section 196.161 allows Appraiser to file a tax lien against property of a taxpayer who
was granted Exemption to which they were not entitled for any year or years within the prior
10 years, to recapture said taxes, and to assess penalties and interest thereon.
48. Under section 196.061 and consistent with Fla. Stat. § 196.193(8),(4), “In order for
there to be entitlement to a homestead tax exemption, an individual must show ownership of
the home, residence therein, and the making of such residence as the permanent home in
good faith.” See AGO 2008-18, 2008 Fla. AG LEXIS 14.
49, Plaintiffs have resided in the subject property as their permanent home since April
17, 2018.
50. Plaintiffs re-established their homestead exemption in August 2018 with sufficient
time to obtain the exemptions for tax years 2014 and subsequent years, thus Plaintiffs were
entitled to the Exemption on the Subject Property in the 2014 through 2016 tax years. See
Fla. Const. Art. VIL, § 6 and Fla. Stat. § 196.031. Thus, Appraiser's retroactive removal of the
homestead exemption and imposition of a tax lien was unlawful.
51. The Subject Property was being used as Plaintiff's permanent residence for tax years
2014 through 2016, thus it is contrary to law to deny Plaintiffs the Exemptions and to levy
retroactive tax thereon.
WHEREFORE, Plaintiffs request that this Court enter a judgment in their favor
against Defendants nullifying Appraiser’s retroactive tax lien for tax years 2014 through
2016; reinstating the 2014 through 2016 homestead and senior citizen exemptions on the
subject property; direct Appraiser and Tax Collector and Department of Revenue to refund
of all overpayments; requiring the DOR to properly oversee Appraiser by recommending to
Page 8 of 18the 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; imposing sanctions against Appraiser, including attorney's fees;
awarding Plaintiffs their costs incurred in this action pursuant to Fla. Stat. § 194.192, and
any other remedy the court deems just and proper.
COUNT II - Removal of Tax Lien Interest and Penalties
(As to Tax Years 2014-2016)
52. Plaintiffs reassert and reaffirms the allegations of paragraphs 1 through 42 as if fully
set forth herein, and further states:
53. On December 5, 2016 and July 3, 2017, Appraiser sent Plaintiffs a Notice of Intent to
File Lien (hereinafter “Lien Notices”) notifying them that the homestead and senior
citizenship exemptions on the Subject Property would be retroactively cancelled for the 2011-
2015 and 2016 tax years. See Exhibits A through D, H and I attached hereto.
54. Section 196.161, allows Appraiser to file a tax lien against property of a taxpayer who
was granted Exemption to which they were not entitled for any year or years within the prior
10 years, to recapture said taxes, and to assess penalties and interest thereon.
55. Under section 196.061 and consistent with Fla. Stat. § 196.198(8) and (4), “In order
for there to be entitlement to a homestead tax exemption, an individual must show ownership
of the home, residence therein, and the making of such residence as the permanent home in
good faith. See AGO 2008-18, 2008 Fla. AG LEXIS 14.
56. Section 196.011(9)(a), further clarifies the interest and penalties are only assessed
where the owner “fraudulently” obtained or was “not entitled to receive” a homestead
exemption. Section 196.011(9)(a) states in pertinent parts,
In its deliberations on whether to waive the annual application or statement
requirement, the governing body shall consider the possibility of fraudulent
Page 9 of 18exemption claims which may occur due to the waiver of the annual application
requirement. The owner of any property granted an exemption who is not
required to file an annual application or statement shall notify the property
appraiser promptly whenever the use of the property or the status or condition
of the owner changes so as to change the exempt status of the property. If any
property owner fails to so notify the property appraiser and the property
appraiser determines that for any year within the prior 10 years the owner
was not entitled to receive such exemption, the owner of the property is
subject to the taxes exempted as a result of such failure plus 15 percent interest
per annum and a penalty of 50 percent of the taxes exempted.
57. The Subject Property was not being rented in tax years 2014 through 2016 and
Plaintiffs resided therein as their permanent and primary residence.
58. In discussions with Appraiser, Appraiser concedes that they have no evidence that the
property was being rented in tax years 2014 through 2016. Instead, Appraiser’s position is
that Plaintiffs failed to apply for their Exemptions for the tax years subsequent to the 2018
tax year of the removal of the exemption; nonetheless, the notices indicate that the
exemptions were removed due to “rental of homestead.” See Exhibits A and B attached
hereto. This is false and inconsistent with Appraiser’s position is that Plaintiffs failed to
reapply for their exemptions and is thus subject to a lien for penalties.
59. Even assuming arguendo that Plaintiffs did not timely apply or failed to apply for
Exemptions on the Subject Property for tax years 2014 through 2016, , there is no basis for
the assessment of penalties in tax years 2014 through 2016 because Plaintiffs were entitled
to the exemption as a matter of law. Absent wrongdoing in obtaining an exemption, there is
no basis in law to assess penalties and interest. Moreover, notwithstanding entitlement,
Plaintiffs did apply for the exemption in time for the 2014 tax year.
60. Since the Property was not being rented in tax years 2014 and subsequently, Plaintiffs
were entitled to the Exemptions under Fla. Stat. §§ 196.161(b) and 196.011 because the
property was not being used for a non-exempt purpose and Plaintiffs did not defraud the
Defendants to obtain a benefit to which they were otherwise entitled.
Page 10 of 1861. Even if Plaintiffs had failed to apply for Exemptions for tax years 2014, which is
contrary to the facts and Appraiser’s own records, Plaintiffs were entitled to the exemptions,
thus the recapture of a tax for failure to apply for Exemptions which Appraiser granted is
not a basis under Fla. Stat. § 196.161(1)(b) to assess penalties and interest. Had Plaintiffs
simply failed to apply for the Exemptions to which they are entitled, they would simply not
the granted the exemptions, but no penalty or interest under Fla. Stat. § 196.161 can be
levied for failure to make an application because there is no basis to establish a lack of
entitlement.
62. Plaintiffs were permanent residents of the state of Florida and resided in the Subject
Property in tax years 2014 through 2016, as such there is no wrongdoing to denying them of
entitlement to the homestead exemption, thus there can be no interest or penalty assessed
under Fla. Stat. § 196.161.
68. For interest and penalties to be assessed on a recapture tax pursuant to Fla. Stat. §
196.161, the Property owners must first be determined to be “a_ person who was not
entitled to a homestead exemption [and] was granted a homestead exemption.”
64. The triggering event for the levy of interest and penalties under Fla. Stat. §
196.161(1)(b) is a lack of entitlement; not whether an application for said exemptions to which
Plaintiffs are otherwise entitled, was filed. Thus, even assuming arguendo that, Plaintiffs
had not applied for the exemptions after January 1, 2018, which is not the case, Plaintiffs
were entitled to the exemptions because the use of the property dictated the “entitlement.”
65. Entitlement under the statute is a matter of actual entitlement to claim the
exemption. See Mitchell v. Higgs, 61 So. 8d 1152, 1155 (Fla. 34 DCA 2011) (“The legislature
has imposed a series of requirements for eligibility for the homestead tax exemption and a
mechanism for recovering the tax savings (plus interest and a penalty) realized by a property
owner not actually entitled to claim the exemption.”)
Page 11 of 1866. For the penalties to be levied, Plaintiffs would necessarily have had to receive the
homestead exemption unlawfully. See also, Fla. Stat. § 196.161(8) (Such lien when filed shall
attach to any property which is identified in the notice of lien and is owned by the person who
illegally or improperly received the homestead exemption.)
67. With respect to 2014 through 2016, where Appraiser concedes and there is actually
no rental of the homestead property, the levy of penalty is contrary to law because Plaintiffs
did not obtain the homestead exemption illegally.
68. Moreover, Fla. Stat. § 196.161(1)(b) provides, “if a homestead exemption is
improperly granted as a result of a clerical mistake or an omission by Appraiser, the person
improperly receiving the exemption shall not be assessed penalty and interest.”
69. Consistent with Fla. Stat. § 196.161(1)(b), Fla. Stat. § 196.161(8) requires that an
improper receipt of a homestead exemption would also result in a lien for the recapture tax,
however, the improper receipt of the homestead is as defined in Fla. Stat. § 196.161(1)(b).
70. Wholly absent from the records of Appraiser's Office which preceded the filing of the
Retractive liens for tax years 2014 through 2016 is any evidence whatsoever that Plaintiffs
were not in continuous permanent resident of the Subject Property between January 1 2014
and January 2016, inclusive.
71. Present in Appraiser’s own records is evidence that Plaintiffs visited Appraiser’s office
in August 2018 to affirm their residence and use of the property as their homestead in an
effort to obtain a Senior Exemption for tax year 2014. Thus, even if Plaintiffs lost their
homestead exemption as at January 1, 2013, their subsequent application for the Senior
Exemption re-established their homestead exemption for all subsequent years.
72. Appraiser’s own records demonstrate the absence of any inquiry whatsoever whether
Plaintiffs moved from the Subject Property with no intent of returning for tax years 2014
through 2016. Fla. Stat § 192.042(). Appraiser's records contain not a scintilla of evidence
Page 12 of 18that the Subject. Property ceased to be Plaintiffs’ permanent residence between for Tax years
2014 through 2016. The exemption revocation and retroactive lien are erroneous and
unauthorized by sections 196.161(1)(b), Florida Statutes.
73. Even assuming arguendo that Plaintiffs failed to apply for the exemption, the levy of
penalties for tax year 2014 through 2016 amounts to a punishment against Plaintiffs for
failure to claim a right, because no other likewise situated taxpayer who failed to apply for
exemptions to which they are entitled would be charged a penalty. The “claw-back” is limited
to the assessment of the property at 100% market value.
74. Since Plaintiffs came to Appraiser on August 29, 2013 to apply for the exemptions in
time for tax year 2014, there can be no Penalty and Interest including for tax years 2018
through 2016 because it is at. best an oversight by Appraiser. See Fla. Stat. § 196.161(b) Cif
a homestead exemption is improperly granted as a result of a clerical mistake or an omission
by Appraiser, the person improperly receiving the exemption shall not be assessed penalty
and interest.”)
WHEREFORE, Plaintiffs request that this Court enter a judgment in their favor and
against Defendants cancelling and nullifying Appraiser’s penalties and interest. charged and
accruing from the date the tax is due to the date of the Retroactive Liens for tax years 2013
through 2016 regardless of whether the Exemptions are reinstated; direct Appraiser and Tax
Collector and Department of Revenue to refund of all overpayments of tax liens, interest and
Penalties; requiring the Tax Collector to correct his records accordingly for tax years 2014
through 2016 to show no retroactive tax liens, interest and Penalties are due; requiring the
DOR to properly oversee Appraiser’s by recommending to the Auditor General of the State of
Florida audit of the retrospective 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; imposing
Page 13 of 18sanctions against. Appraiser, including attorney’s fees for Appraiser’s abuse of process in
nullifying Plaintiffs’ homestead exemptions and assessing interest and penalties without
legal and factual basis; awarding Plaintiffs their costs incurred in bringing this action
pursuant to section 194.192, Florida; and a declaration that Plaintiffs are the prevailing
parties; and any other remedy the court deems just and proper.
COUNT III - Removal of 2016 Recapture Tax, Interest and Penalties and
Overassessment for Subsequent Tax Years
75. Plaintiffs reassert and reaffirms the allegations of paragraphs 1 through 42 and as if
fully set forth herein, and further states:
76. Section 196.161 allows Appraiser to file a tax lien against property of a taxpayer who
was granted Exemption to which they were not entitled for any year or years within the prior
10 years, to recapture said taxes, and to assess penalties and interest thereon.
77. Section 193.1554(8), provides,
Beginning in the year following the year the non-homestead residential
property becomes eligible for assessment pursuant to this section, the property
shall be reassessed annually on January 1. Any change resulting from such
reassessment may not exceed ten (10) percent of the assessed value of the
property for the prior year.
78. Assuming arguendo that the Defendants are correct that Plaintiffs were not entitled
to homestead on the subject property for tax years 2014 through 2016, the Defendants have
not complied with Fla. Stat. § 198.1554(8) in determining the amount of the recapture tax for
tax year 2016 because Appraiser’s 2016 assessed value of a purported non-homestead
residential property exceed the statutory maximum permissible under Fla. Stat. §
198.1554(8). This violation of Fla. Stat. § 198.1554(8) permeated and continued into the
assessed value for tax year 2017 because the 2016 assessed value was also used in 2017.
79. Plaintiffs held an informal meeting with Appraiser and apprised the PA’s office that
it’s assessed value for 2016 violated Florida law. After the meeting with the PA and without
Page 14 of 18informing Plaintiffs of the exact changes, Appraiser made changes to the 2016 tax lien
purporting to correct the recapture tax issue; however, although there were some noted
reductions for some “Taxing Authority” the changes still resulted in excessive recapture tax
for tax year 2016.
80. Appraiser has refused to correct the issue, insisting that no further changes are
required, thus the overassessment in subsequent tax years is the direct consequence of said
refusal to comply with Fla. Stat. § 193.1554(8) in tax year 2016.
WHEREFORE, Plaintiffs request that this Court enter a judgment in their favor and
against Defendants cancelling and nullifying Appraiser’s retroactive tax lien for tax year
2016, penalties and interest charged for tax year 2016 and accruing from the date the tax is
due to the date of the Retroactive Liens for tax year 2016 regardless of whether the
Exemptions are reinstated; direct Appraiser and Tax Collector and Department of Revenue
to refund of all overpayments of Recapture tax, interest and penalties thereon; requiring the
Tax Collector to correct his records accordingly for tax year 2016 to show no retroactive tax
liens, interest and Penalties are due; requiring the DOR to properly oversee Appraiser’s by
recommending to the Auditor General of the State of Florida 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; imposing sanctions against Appraiser,
including attorneys fees for Appraiser’s abuse of process in nullifying Plaintiffs’ homestead
exemptions and assessing interest and penalties without legal and factual basis; awarding
Plaintiffs their costs incurred in bringing this action pursuant to section 194.192, Florida;
and a declaration that Plaintiffs are the prevailing parties; and any other remedy the court
deems just and proper.
Page 15 of 18COUNT IV - Portability of Homestead from 2012 to 2014 Tax Years
81. Plaintiffs reassert and reaffirms the allegations of paragraphs 1 through 42 and as if
fully set forth herein, and further states:
82. Plaintiffs are entitled and Appraiser has conceded that Plaintiffs are entitled to
homestead exemption for Tax years 2012.
83. Plaintiffs do not contest the removal of the exemptions as it relates to tax year 2018
and as such has paid the Retroactive Tax. See Exhibit E attached hereto.
84. The Save Our Homes (SOH) Amendment passed by the voters in 1992, caps annual
increases in the assessed value of a homestead to three percent of the assessment for the
prior year or the percent change in the Consumer Price Index, whichever is lower. See Art.
VII, § 4(d€)(), Fla. Const.
85. In 2008, voters approved a separate constitutional amendment that permits a
homeowner to transfer the benefit accrued under the SOH Amendment to a new homestead
established within two years of abandonment of the prior homestead. See Art. VI, § 4(d)(8),
Fla. Const. The 2008 portability amendment allows a homeowner to transfer some or all of
an SOH benefit to reduce the assessed value of a qualifying new homestead. The SOH benefit
is the difference between the market value (known as just value) and assessed value (as
capped by the SOH amendment) of the former homestead as of January 1 of the year the
former homestead is abandoned. See Fla. Stat. § 198.155(8); and Fla. Const. Art. VII § 4(d)(8).
86. In pertinent part, Art. VII, § 4(d)(8)(a)(1), Fla. Const., provides
A person who establishes a new homestead as of January 1, 2009, or January
1 of any subsequent year and who has received a homestead exemption
pursuant to Section 6 of this Article as of January 1 of either of the two years
immediately preceding the establishment of the new homestead is entitled to
have the new homestead assessed at less than just value. [] The assessed value
of the newly established homestead shall be determined as follows:
1. If the just value of the new homestead is greater than or equal to the just
value of the prior homestead as of January 1 of the year in which the prior
homestead was abandoned, the assessed value of the new homestead shall be
Page 16 of 18the just value of the new homestead minus an amount equal to the lesser of
$500,000 or the difference between the just value and the assessed value of the
prior homestead as of January 1 of the year in which the prior homestead was
abandoned. Thereafter, the homestead shall be assessed as provided in this
subsection.
87. Since Plaintiffs abandoned their homestead as at January 1, 2013, re-established
their homestead prior to January 1, 2014, and the value of their newly established homestead
as at January 1, 2014 was greater than the value of their abandoned homestead, Plaintiffs
are entitled to the portability attributes of their homestead.
88. By unjustly denying Plaintiffs their homestead exemption for tax years 2014 and
subsequent years, Appraiser has violated the Florida Constitution by unjustly basing all tax
years subsequent to 2018 on values that deprives Plaintiffs of their constitutional portability
benefits. This constitutes a material injury to Plaintiffs.
WHEREFORE, Plaintiffs request that this Court enter a judgment in their favor and
against Defendants cancelling and nullifying Appraiser’s retroactive tax lien for tax years
2014 through 2016, penalties and interest charged for tax year 2016 and accruing from the
date the tax is due to the date of the judgment; direct Appraiser to reinstate Plaintiffs’
homestead and senior exemptions for tax years 2014 through 2016; direct Appraiser to port
the attributes of the abandoned homestead to the newly established homestead commencing
2014 and subsequent years; direct Appraiser and Tax Collector and Department of Revenue
to refund of all overpayments; requiring the Tax Collector to correct his records accordingly
for tax year 2016 to show no retroactive tax liens, interest and Penalties are due; requiring
the DOR to properly oversee Appraiser’s by recommending to the Auditor General of the State
of Florida 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; Direct the
DOR to review Appraiser’s practices employed to determine the retroactive denial of the 2016
Page 17 of 18exemptions and the consequential denial of portability benefits to Plaintiffs, imposing
sanctions against Appraiser, including attorney’s fees for Appraiser’s abuse of process in
nullifying Plaintiffs’ homestead exemptions and assessing interest and penalties without
legal and factual basis; awarding Plaintiffs their costs incurred in bringing this action
pursuant to section 194.192, Florida; and a declaration that Plaintiffs are the prevailing
parties; and any other remedy the court deems just and proper.
DEMAND FOR JURY TRIAL
Plaintiffs demand a jury trial for all matters herein triable as of right before a jury.
Department of Revenue v. Printing House, 644 So. 2d 498, 501 (Fla. 1994).
Respectfully submitted this 12 day of August, 2019,
André Gibson, Chartered
/s/ André A, Gibson.
André A. Gibson
Attorney for Plaintiffs, Raul Mejia and Virginia Lopez.
Florida Bar Number: 0635529
45 NE 67th Street,
North Miami Beach, FL 33162
Telephone: (3805) 652-4900
Fax: (805) 808-3495
E-Mail: AAGibson@Gibsontaxlaw.com
Secondary E-Mail: Efile@Gibsontaxlaw.com
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been furnished via electronic
mail to Timothy Dennis at Timothy. Dennis@myfloridalegal.com,
Jon.Annette@myfloridalegal.com, Rebecca.Padgett@myfloridalegal.com; and Michael
Mastrucci, Assistant County Attorney, mastrucc@miamidade.gov; emily@miamidade.gov,
this 12th day of August, 2020.
/s/ André A, Gibson.
André A. Gibson
Attorney for Plaintiff, Raul Mejia and Virginia Lopez
Page 18 of 18EXHIBIT A
45 NE 167" STREET, NORTH MIAMI BEACH, FL 33162
TELEPHONE: 305-652-4900 || TELEFAX: 305-808-3495
AAGibson@Gibsontaxlaw.comMIAMI-DADE COUNTY
PROPERTY APPRAISER
INVESTIGATION UNIT
PEDRO J. GARCIA
PROPERTY APPRAISER
CERTIFIED MAIL NOTICE OF INTENT LIEN
RETURN RECEIPT REQUESTED
7013 2250 0001 3711 0573
December 5, 2016
RAUL MEJIA
VIRGINIA LOPEZ JTRS
201 178 DR #531
MIAMI, FL 33160-2898
RE: Violation Property: 201 178 DR 531 FOLIO: 31-2211-039-1220
Dear Property Owners:
The Miami-Dade County Property Appraiser’s Office reviewed the ad valorem property tax benefit(s) for the
above-captioned property and determined that the owner(s) of record was/were not entitled to the
Homestead Exemption. In accordance with sec. 196.161, Florida Statutes, enclosed is the Notice of Tax
Lien for Homestead Exemption and/or Limitation Exclusion (DR-453) reflecting applicable tax years, value
exempted, taxes exempted, and penalties and interest.
The Notice of Tax Lien for Homestead Exemption and/or Limitation Exclusion (DR-453) will be recorded with
the Clerk of the Circuit Court on or about January 5, 2017 as required by sec. 196.161, Florida Statutes. The
purpose of this lien is to recover the ad valorem taxes lost when the property received those benefit(s) to
which it was not entitled.
In lieu of recordation of the lien, you may pay the taxes and penalties and interest (if applicable) in the
amount of $23,977.68. Payment must be in the form of a cashier’s check or money order made payable to
the “Miami-Dade County Tax Collector” and mailed to the Tax Collector’s Office, 200 NW 2nd Avenue,
Miami, Florida 33128. Please note, if your lien contains penalties and interest, the amount specified in this
Notice will be subject to change beginning in 30 days. For questions regarding payments or payment
arrangements, please contact the Tax Collector’s Office at 305-270-4916.
If you would like to discuss the Miami-Dade County Property Appraiser’s Office determination of non-
entitlement of benefits, please contact Mr. Julio Guas at 305-375-4237 or 305-375-3402. You may also
email the Investigations Section at Invcustserv@ miamidade.gov.
Sincerely,
a
Ernesto Alonso CFE
Investigations Supervisor
Office of the Property Appraiser
111 NW IST STREET, SUITE 710 * MIAMI, FLORIDA + 33128
PHONE: 305-375-3402 + BAX: 305-375-1912
WEB SITE: WWW.MIAMIDADE.GOV/PA.: NOTICE OF TAX LIEN DR-453
: FOR EXEMPTIONS AND Rule 12016 noe
H ASSESSMENT LIMITATIONS enous
FLORIDA Miami-Dade County, Florida
RAUL MEJIA, VIRGINIA LOPEZ JTRS (taxpayer) has received exemption(s)
and/or assessment limitation(s) totaling $12,743.48 for 5 years. The property
appraiser has discovered that the taxpayer was not legally entitled to receive the
exemption(s) and/or assessment limitation because:
RENTAL OF HOMESTEAD.
Sections 193.155(10), 193,1554(10), 193.1555(10), 193.501(9), 196.011(9),
196.075(9), 196.161(1) and 196.183, F.S., require a lien on the property to
recover unpaid taxes. The property appraiser will recover from the taxpayer taxes
due, a 50 percent penalty and 15 percent interest for any year or years
within the last ten years in which the taxpayer was not entitled to, but was
granted, a tax exemption or assessment limitation.
When this document is recorded, it becomes a lien on the real property addressed
and legally owned by the taxpayer in Florida.
FOR OFFICIAL USE ONLY
Taxpayer RAUL MEJIA, VIRGINIA LOPEZ JTRS Parcel ID 31-2211-039-1220 / Case # 13809
name
Address 201178 DR531 Legal LE CARTIER CONDO
Sunny Isles Beach, 33160-2875 description UNIT 531
UNDIV .64496%
Column 1 Column 2 Column 3 Column 4 Column 5
Tax Year/ Date tax due Reason for Lien Taxes Due Penalty Interest
2011 / 11/1/2011 RENTAL OF HOMESTEAD 2,098.53, 1,049.27 +STC
2012 / 11/1/2012 RENTAL OF HOMESTEAD 2,024.96 1,012.48 *STC
2013 / 11/1/2013 RENTAL OF HOMESTEAD 2,695.54 1,347.78 *STC
2014 / 11/1/2014 RENTAL OF HOMESTEAD 2,998.48 1,499.25 *STC
2015 / 11/1/2015 RENTAL OF HOMESTEAD 2,925.97 1,462.99 *STC
Tax Collector: The 50 percent penalty is calculated individually on each annual Total for Column 6 (subtotal)
exemption or assessment limitation. Interest is based on the taxes exempted or excluded
each year from the date the taxes become due for each assessment until the lien is Added fees Property Appraiser
satisfied. and costs
The tax collector must collect any fees and costs which the property appraiser or the tax paid by: Tax Collector
collector has incurred in filing and collecting this lien.
TOTAL DUE
*STC See Tax Collector
Column 6
TOTAL (34445)
*STC
*STC
*STC
*STC
*STC
*STC
N/A
10.00
*sTC
| certify that | have read this notice of tax lien and the facts in it are true. If prepared by someone other than the property appraiser, this
declaration is based on all information of which he or she has knowledge.
Deputy Property Appraiser
Signature Title Date
Payment must include all unpaid taxes, interest, penalties, fees, and costs, or the lien will not be satisfied,MIAMI-DADE COUNTY
PROPERTY APPRAISER
INVESTIGATION UNIT
PEDRO J. GARCIA
PROPERTY APPRAISER
December 5, 2016
RAUL MEJIA
VIRGINIA LOPEZ JTRS
201 178 DR #531
MIAMI, FL 33160-2898
Property Address: 201 178 DR 531
Folio: 31-2211-039-1220
Dear RAUL MEJIA:
Pursuant to Section 196.161, Florida Statutes, you were not entitled to the exemption received on the
above referenced property for 2016. Therefore, to avoid a lien including penalties and interest from
being filed, the Office of the Property Appraiser requires your signature below to remove the
exemption and applicable assessment limitations.
If you have any questions regarding this matter, you may contact Mr. Julio Guas at 305-375-4237 or
305-375-3402, or via email at Invcustserv@miamidade.gov.
Sincerely,
(a
Ernesto Alonso CFE
Investigations Supervisor
Office of the Property Appraiser
| hereby authorize the Office of the Property Appraiser to remove the Homestead Exemption at the
above referenced address for 2016.
NAME
SIGNATURE DATE
SUITE 710 + MIAMI, FLORIDA + 33128
PHONE: 305-375-3402- + FAX: 305-375-1912
WEB SITE: WWAV.MIAMIDADE.GOV/PA.EXHIBIT B
45 NE 167" STREET, NORTH MIAMI BEACH, FL 33162
TELEPHONE: 305-652-4900 || TELEFAX: 305-808-3495
AAGibson@Gibsontaxlaw.comMIAMI-DADE COUNTY
PROPERTY APPRAISER
INVESTIGATION UNIT
PEDRO J. GARCIA
PROPERTY APPRAISER
CERTIFIED MAIL NOTICE OF INTENT TO LIEN
RETURN RECEIPT REQUESTED
7017 1070 0000 0395 9089
July 3, 2017
RAUL MEJIA
VIRGINIA LOPEZ
201 178 DR #531
MIAMI, FL 33160-2898
RE: Violation Property: 201 178 DR 531 FOLIO: 31-2211-039-1220
Dear Property Owner:
The Miami-Dade County Property Appraiser’s Office reviewed the ad valorem property tax benefit(s) for the
above-captioned property and determined that the owner(s) of record was/were not entitled to the
Homestead Exemption. In accordance with sec. 196.011 and 196.161, Florida Statutes, enclosed is the
Notice of Tax Lien for Homestead Exemption and/or Limitation Exclusion (DR-453) reflecting applicable tax
years, value exempted, taxes exempted, and penalties and interest.
The Notice of Tax Lien for Homestead Exemption and/or Limitation Exclusion (DR-453) will be recorded with
the Clerk of the Circuit Court on or about August 1, 2017 as required by sec. 196.011 and 196.161, Florida
Statutes. The purpose of this lien is to recover the ad valorem taxes lost when the property received those
benefit(s) to which it was not entitled.
In lieu of recordation of the lien, you may pay the taxes and penalties and interest (if applicable) in the
amount of $5,168.75. Payment must be in the form of a cashier’s check or money order made payable to
the “Miami-Dade County Tax Collector” and mailed to the Tax Collector’s Office, 200 NW 2nd Avenue,
Miami, Florida 33128. Please note, if your lien contains penalties and interest, the amount specified in this
Notice will be subject to change beginning in 30 days. For questions regarding payments or payment
arrangements, please contact the Tax Collector’s Office at 305-270-4916.
If you would like to discuss the Miami-Dade County Property Appraiser’s Office determination of non-
entitlement of benefits, please contact Mr. Julio Guas at 305-375-4237 or 305-375-3402. You may also
email the Investigations Section at Invcustserv@miamidade.gov.
Sincerely,
(a
Ernesto Alonso CFE
Investigations Supervisor
Office of the Property Appraiser
111 NW 1ST STREET, SUITE 710 + MIAMI, FLORIDA + 33128
PHONE: 305-375-3402 * BAX: 305-375-1912
WEB SITE: WWW.MIAMIDADE.GOV/PANOTICE OF TAX LIEN DR-453
i FOR EXEMPTIONS AND aye ok 848
ASSESSMENT LIMITATIONS ent oan
FLORIDA Miami-Dade County, Florida
RAUL MEJIA, VIRGINIA LOPEZ JTRS (taxpayer) has received exemption(s)
and/or assessment limitation(s) totaling $3,361.79 for 1 year. The property
appraiser has discovered that the taxpayer was not legally entitled to receive the
exemption(s) and/or assessment limitation because:
RENTAL OF HOMESTEAD.
Sections 193.155(10), 193.1554(10), 193.1555(10), 193.501(9), 196.011(9),
196.075(9), 196.161(1) and 196.183, F.S., require a lien on the property to
recover unpaid taxes. The property appraiser will recover from the taxpayer taxes
due, a 50 percent penalty and 15 percent interest for any year or years
within the last ten years in which the taxpayer was not entitled to, but was.
granted, a tax exemption or assessment limitation.
When this document is recorded, it becomes a lien on the real property addressed
and legally owned by the taxpayer in Florida.
FOR OFFICIAL USE ONLY
Taxpayer RAUL MEJIA, VIRGINIA LOPEZ JTRS Parcel ID 31-2211-039-1220 / Case # 14771
name
Address 201178 R531 Legal LE CARTIER CONDO
Sunny Isles Beach, 33160-2875 description UNIT 532
UNDIV .64496% INT IN COMMON ELEMENTS
Column 1 Column 2 Column 3 Column 4 Column5 Column6
Tax Year/ Date tax due Reason for Lien Taxes Due Penalty Interest. TOTAL (3+4+5)
2016 / 11/1/2016 RENTAL OF HOMESTEAD 3,361.79 1,680.90 ‘STC *STC
Tax Collector: The 50 percent penalty is calculated individually on each annual Total for Column 6 (subtotal) *STC
exemption or assessment limitation. Interest is based on the taxes exempted or excluded
each year from the date the taxes become due for each assessment until the lien is Added fees Property Appraiser N/A
satisfied. and costs
The tax collector must collect any fees and costs which the property appraiser or the tax paid by: Tax Collector 10.00
collector has incurred in filing and collecting this lien.
TOTAL DUE *STC
*STC See Tax Collector
| certify that | have read this notice of tax lien and the facts in it are true. If prepared by someone other than the property appraiser, this
declaration is based on all information of which he or she has knowledge.
Deputy Property Appraiser.
Signature Title Date
Payment must include all unpaid taxes, interest, penalties, fees, and costs, or the lien will not be satisfied.EXHIBIT C
4
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Filing # 111672153 E-Filed 08/12/2020 12:50:56 PM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CIVIL ACTION RAUL MEJIA, and VIRGINIA LOPEZ Plaintiffs, CASE NO.: 2018-12371-CA vs. DIVISION: PEDRO GARCIA, as Property Appraiser of Miami Dade County Florida; LEON M. BIEGALSKI, as Executive Director of Florida Department of Revenue; MARCUS SAIZ DE LA MORA, as Tax Collector of Miami Dade County, Florida Defendants. / PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINT Plaintiffs, Raul Mejia and Virginia Lopez, (hereinafter, “Plaintiffs”) by and through their undersigned counsel, pursuant to Fla. R. Civ. P. 1.190(a) and hereby moves this Court for leave to file a Third Amended Complaint and as basis states as follows: 1. Plaintiffs filed their original complaint on April 17, 2018 and amended the same on May 17, 2018 to correct the name of Defendant, Property Appraiser. 2. Plaintiffs requested permission to file a Second Amended Complaint to add a fourth cause of action, to amend the general allegations with additional facts to support the new cause of action. 3. Since the last amendment, Plaintiff has undertaken discovery and taken the deposition of several of Defendants’ agents. During the course of discovery and since the second amended complaint, Plaintiffs discovered several facts and there have been some factual developments, which although does not eliminate any of the existing causes of action, are sufficient to warrant the facts upon which the causes of actions are based. 4. This action is not set for trial and Defendants have not conducted any discovery. As Page 1 of 3such, the proposed Third Amended Complaint (attached as Exhibit "A") will not cause any undue delay nor otherwise prejudice Defendants. 5. Rule 1.190, Florida Rules of Civil Procedure, states that “Leave of court [to amend] shall be given freely when justice so requires.” In the instant case, the basis for the proposed amendment to add Count IV arose from the facts already in Defendants’ possession and discovered by Plaintiffs during discovery from the Defendants. GOOD FAITH CERTIFICATION The undersigned certifies that on behalf of the Plaintiff, that the amendment sought by this motion is being sought in good faith and not for the purpose of delay. Wherefore, the Plaintiff's respectfully requests that this Honorable Court enter an order Granting the Motion; Deeming the Third Amended Complaint filed as of the date of the Order; and Directing Defendants to respond to the Third Amended Complaint within ten days of the date of the Order, and any other relief this Court deems proper. Respectfully submitted, ANDRE GIBSON, CHARTERED Andre A. Gibson Attorney for Plaintiffs, Virginia and Raul Mejia Florida Bar Number: 0635529 45 NE 67th Street, North Miami Beach, FL 33162 Telephone: (805) 652-4900 E-Mail: AAGibson@Gibsontaxlaw.com Secondary E-Mail: Efile@Gibsontaxlaw.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished via electronic mail to Timothy Dennis at Timothy. Dennis@myfloridalegal.com, Jon.Annette@myfloridalegal.com, Rebecca.Padgett@myfloridalegal.com; and Michael Page 2 of 3Mastrucci, Assistant County Attorney, mastrucc@miamidade.gov; emily@miamidade.gov, this 12t» day of August, 2020. 4 AST Se André A. Gibson Attorney for Plaintiffs Page 3 of 3IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CIVIL ACTION RAUL MEJIA, and VIRGINIA LOPEZ Plaintiffs, CASE NO.: 2018-12371-CA vs. DIVISION: PEDRO GARCIA, as Property Appraiser of Miami Dade County Florida; LEON M. BIEGALSKI, as Executive Director of Florida Department of Revenue; MARCUS SAIZ DE LA MORA, as Tax Collector of Miami Dade County, Florida Defendants. / THIRD AMENDED COMPLAINT FOR DECLARATORY AND OTHER RELIEF COMES NOW Plaintiffs, RAUL MEJIA (hereinafter, MEJIA) and VIRGINIA LOPEZ (hereinafter, LOPEZ), as Joint Tennant with Rights of survivorship, (hereinafter, “PLAINTIFFS’”) and sues Defendants, PEDRO GARCIA, as Property Appraiser of Miami Dade County Florida, (hereinafter “Appraiser’); LEON M. BIEGALSKI, as Executive Director of Florida Department of Revenue, (hereinafter, “DOR”); and MARCUS SAIZ DE LA MORA, as Tax Collector of Miami Dade County, Florida (hereinafter, “Collector”); the Collector, DOR, and Appraiser are hereinafter jointly referred to as Defendants, and allege: NATURE OF THE CASE 1. This is an action for a declaratory judgment and to challenge the removal and refusal to reinstate of a homestead and Senior Citizen exemptions (hereinafter, “Exemptions”) and imposition of retroactive tax liens on property in Miami-Dade County, Florida. PARTIES 2. Plaintiffs, MEJIA and LOPEZ, at all times relevant, are the owners of certain real property located at 201 178th Drive, unit 531, Sunny Isles, Florida 33160-2875, and identified Page 1 of 18as Parcel No. 81-2211-089-1220 (“Subject Property”), which was classified and assessed as owner-occupied residential property in tax year 2005 through 2016. 8. Appraiser is sued herein in his official capacity and is a necessary party to this action pursuant to section 194.181(2), Florida Statutes. 4. Collector is sued herein in his official capacity and is a necessary party to the action pursuant to section 194.181(8), Florida Statutes. 5. Defendant, LEON M. BIEGALSKI, is sued herein in his official capacity and is a necessarily party to the action pursuant to section 194.181(5), Florida Statutes. JURISDICTION 6. This Court has jurisdiction pursuant to Chapter 194, Florida Statutes, article V, sections 5 and 20 of the Florida Constitution, and section 86.011, Florida Statutes. VENUE 7. Venue is appropriate in this Court pursuant to Fla. Stat. Sections 47.011, and 47.021. GENERAL ALLEGATIONS 8. Plaintiffs jointly owned the Subject Property from 2005 through and including the present which consisted of a single residential or family unit and made it their permanent residence. 9. Except for tax year 2018, from 2005 through and including present, Plaintiffs have occupied and used the Subject Property predominantly or exclusively as their homestead. 10. Plaintiffs applied for and received a homestead exemption on the subject in 2005 which was automatically renewed through 2012; however, on or about August 29, 2018, MEJIA visited Appraiser’s office and informed them that the property was rented from April 2012 to April 2018 and sought to renew and reapply for the homestead exemption to commence tax year 2014. 11. While at Appraiser’s office, MEJIA was informed that he may be eligible for a Senior Page 2 of 18Citizen Exemption. The agent assisted MEJIA with completing the forms. MEJIA had no intent to seek an exemption for 2018, however, the Agent completed the form as a late application for exemption. 12. On December 5, 2016, Appraiser determined that Plaintiffs “were not entitled to the Homestead Exemption” on the Subject Property and issued a Notice of Intent to Lien the subject property for tax years 2011 through 2015. See Exhibits A attached hereto 13. Upon Plaintiffs contest of the determination and Notice of Intent to Lien for tax years 2011 through 2015, Appraiser reversed its position with respect to tax years 2011 and 2012, but maintained their position with respect to tax years 2018 through 2015. See Exhibit C attached hereto 14. Again, on July 3, 2017, Appraiser determined that Plaintiffs “were not entitled to the Homestead Exemption” and issued a Notice of Intent to Lien the subject property for tax years 2016. See Exhibits B and D attached hereto 15. Appraiser’s basis for the retroactive cancellation of the exemptions is: a. For tax year 2013 Appraiser states that based on a rental contract produced by Plaintiff to Appraiser, the property was not being used as a homestead. b. For tax years 2014 through 2016 Appraiser orally stated that Plaintiffs failed to reapply for the exemptions which was removed in 2013; however, the DR-453 forms supplied by Appraiser states that the retroactive tax liens were the result of “Rental of Homestead.” 16. Wholly absent from Appraiser's records which preceded the filing of the retroactive liens for tax years 2014 through 2016, is any evidence whatsoever that Plaintiffs were not in continuous permanent residence of the Subject Property between January 1, 2014 and January 1, 2016, inclusive. 17. Present in Appraiser’s own records is evidence that MEJIA visited Appraiser’s office Page 3 of 18in August 2018 to affirm their residence and use of the property as their homestead in an effort to obtain a Senior Exemption. Thus, even if Plaintiffs lost their homestead exemption as at January 1, 2018, their subsequent application for the Senior Exemption on August 29, 2018 re-established their homestead exemption for all subsequent years. 18. Appraiser’s own records demonstrate the absence of any inquiry whatsoever whether Plaintiffs moved from the Subject Property with no intent of returning for tax years 2014 through 2016. Appraiser's records contain not a scintilla of evidence that the Subject Property ceased to be Plaintiffs’ permanent residence for Tax years 2011, 2012, 2014 through 2016. The retroactive lien is erroneous and unauthorized by sections 196.161(1)(b), Florida Statutes. 19. Appraiser administers property taxes, including assessment, tax collection, and dispute resolution. DOR provides oversight to Appraiser’s administration of property taxes. DOR oversees Appraiser’s compliance with constitutional and statutory requirements for property valuation, property classification and exemptions, Truth in Millage (TRIM) and millage levying, refunds and tax certificate cancellations, value adjustment board proceedings, and annual budgets. See Exhibit J attached hereto 20. As the oversight Agency, DOR failed to properly oversee Appraiser’s Retroactive Tax Liens which denies Plaintiffs of their constitutional homestead and senior exemptions without evidence to establish an abandonment had occurred or despite evidence that an abandonment had not occurred. This lack of oversight caused injury to Plaintiffs in the loss of their constitutional homestead and senior exemptions. 21. Plaintiffs do not contest the cancellation of the exemptions for tax year 2013 and as such has paid the Retroactive Tax; however, Plaintiffs maintain that the levy of interest and penalties for tax year 2013 is not supported by law and the facts. See Exhibit E attached hereto Page 4 of 1822. On or about August 29, 2018 when MEJIA visited Appraiser’s office and applied for Senior Citizenship Exemptions pursuant to Fla. Stat. 196.075 in addition to notifying Appraiser of the loss of 2018 exemption and seeking to apply for the 2014 homestead exemption. This Senior Citizen Exemption application necessarily accompanied and required that the Subject Property be declared the homestead. 23. Appraiser granted retroactive benefits to the Senior Citizenship Exemption application for tax year 2018 and future years although MEJIA informed them of the loss of Homestead for 2013 and sought only 2014 forward. 24. As at April 17, 2018, the subject property was no longer under contract for rental and was being used as Plaintiffs’ homestead which entitled them to exemptions for tax years 2014 through present. 25. The application for senior citizenship exemption on August 29, 2018, was timely for tax year 2014. 26. Plaintiffs own no other property on which to claim or receive a homestead exemption or Senior Citizen Exemption in the state of Florida or any other state. 27. Plaintiffs have provided the Defendants with all documents to establish that the subject property is their homestead, yet Appraiser maintains the same position that the subject property is being rented and that the taxpayers have failed to provide statutory evidence that the Subject Property is their permanent address. Appraiser 28. An actual case and controversy exist between the parties that this Court may be adjudicate. 29. The Defendants have taken affirmative action against Plaintiffs by placing a lien against their property, and depriving Plaintiffs of their constitutional property exemptions right. 30. Plaintiffs have a reasonable apprehension that it will suffer irreparable injury if the Page 5 of 18Defendants does not release the lien against their property because interest continues to accrue and the property is in jeopardy of eventual sale by the defendants to satisfy the liens. 31. Defendants demanded that Plaintiffs pay the Liens (including interest and penalties) resulting from the removal of Exemptions, to which Exemptions Plaintiffs are entitled. 32. Plaintiffs have a real and reasonable apprehension that if they should fail to pay the Lien they will be penalized by the Defendants and their homestead Property would be taken and used to satisfy said Lien. 33. The Declarations sought herein is necessary and appropriate under the circumstances in order that Plaintiffs may ascertain Exemptions and portability of exemptions to which they are entitled and the correct. amount of recapture tax, penalties and interest, if any, permissible by law. 34. Section 86.011 this Court has jurisdiction to declare the existence or nonexistence of any fact upon which the existence or nonexistence of an immunity, power, privilege, or right does or may depend, whether such immunity, power, privilege, or right now exists or will arise in the future. 35. Section 86.051 allows this Court to render a declaratory judgment by way of anticipation with respect “to any act not yet done or any event which has not yet happened.” 36. Section 86.111 also permits “a speedy hearing of an action for declaratory judgment” and the Court “may advance it on the calendar.” 37. Section 86.101 provides that this Court has jurisdiction to address the instant matter to settle and to afford relief from insecurity and uncertainty with respect to rights, status, and other equitable or legal relations. 38. The failure to stop the Defendant’s past and present course of conduct as set forth herein would be to endorse an injustice and loss of Plaintiffs property, and monies paid under protest so as to establish standing for this action. Page 6 of 1839. Prior to instituting this action, Plaintiffs: a. Paid under protest the entire recapture tax levy with interest and penalties for tax year 2013; See Exhibit E attached hereto b. Paid under protest the amount of the recapture tax for tax years 2014 through 2016 as good faith payment which exceeds the amount the recapture tax when the exemptions are reinstated and/or the amount of interest and penalties are removed; See Exhibit F attached hereto c. Paid the 2017 tax bill under protest. See Exhibit G attached hereto AO. Plaintiffs’ mortgage company subsequently paid the balances on the homestead penalty and liens in full which Plaintiffs are required to repay. As a result, the Property Appraiser filed and recorded a satisfaction of tax liens for each of the tax years at issue in this action. See Exhibit K attached hereto. 41. Plaintiffs maintain their claim that the tax liens were improper and he right to be repaid for the amounts in satisfaction thereof. 42. All conditions precedent to filing this suit have been met. COUNT I - REMOVAL OF TAX LIEN (As to Tax Years 2014 through 2016) 43. Plaintiffs reassert and reaffirms the allegations of paragraphs 1 through 42 as if fully set forth herein, and further states: 44. On December 5, 2016 and July 3, 2017, Appraiser sent Plaintiffs a Notice of Intent to File Lien (hereinafter “Lien Notices”) notifying them that the homestead and senior citizenship exemptions on the Subject Property would be retroactively removed for the 2011- 2015 and 2016 tax years respectively. Copies of the Liens are attached hereto as Exhibits A through D, H and I. 45. The Lien Notices stated that the reason for the removal of the Exemptions was due to Page 7 of 18rental of the homestead. See Exhibit A at 2, and Exhibit B at 2 46. Consistent with the Lien Notices, Appraiser and Collector recorded the tax liens against the Subject Property alleging that the same arose from rental of homestead. 47. Section 196.161 allows Appraiser to file a tax lien against property of a taxpayer who was granted Exemption to which they were not entitled for any year or years within the prior 10 years, to recapture said taxes, and to assess penalties and interest thereon. 48. Under section 196.061 and consistent with Fla. Stat. § 196.193(8),(4), “In order for there to be entitlement to a homestead tax exemption, an individual must show ownership of the home, residence therein, and the making of such residence as the permanent home in good faith.” See AGO 2008-18, 2008 Fla. AG LEXIS 14. 49, Plaintiffs have resided in the subject property as their permanent home since April 17, 2018. 50. Plaintiffs re-established their homestead exemption in August 2018 with sufficient time to obtain the exemptions for tax years 2014 and subsequent years, thus Plaintiffs were entitled to the Exemption on the Subject Property in the 2014 through 2016 tax years. See Fla. Const. Art. VIL, § 6 and Fla. Stat. § 196.031. Thus, Appraiser's retroactive removal of the homestead exemption and imposition of a tax lien was unlawful. 51. The Subject Property was being used as Plaintiff's permanent residence for tax years 2014 through 2016, thus it is contrary to law to deny Plaintiffs the Exemptions and to levy retroactive tax thereon. WHEREFORE, Plaintiffs request that this Court enter a judgment in their favor against Defendants nullifying Appraiser’s retroactive tax lien for tax years 2014 through 2016; reinstating the 2014 through 2016 homestead and senior citizen exemptions on the subject property; direct Appraiser and Tax Collector and Department of Revenue to refund of all overpayments; requiring the DOR to properly oversee Appraiser by recommending to Page 8 of 18the 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; imposing sanctions against Appraiser, including attorney's fees; awarding Plaintiffs their costs incurred in this action pursuant to Fla. Stat. § 194.192, and any other remedy the court deems just and proper. COUNT II - Removal of Tax Lien Interest and Penalties (As to Tax Years 2014-2016) 52. Plaintiffs reassert and reaffirms the allegations of paragraphs 1 through 42 as if fully set forth herein, and further states: 53. On December 5, 2016 and July 3, 2017, Appraiser sent Plaintiffs a Notice of Intent to File Lien (hereinafter “Lien Notices”) notifying them that the homestead and senior citizenship exemptions on the Subject Property would be retroactively cancelled for the 2011- 2015 and 2016 tax years. See Exhibits A through D, H and I attached hereto. 54. Section 196.161, allows Appraiser to file a tax lien against property of a taxpayer who was granted Exemption to which they were not entitled for any year or years within the prior 10 years, to recapture said taxes, and to assess penalties and interest thereon. 55. Under section 196.061 and consistent with Fla. Stat. § 196.198(8) and (4), “In order for there to be entitlement to a homestead tax exemption, an individual must show ownership of the home, residence therein, and the making of such residence as the permanent home in good faith. See AGO 2008-18, 2008 Fla. AG LEXIS 14. 56. Section 196.011(9)(a), further clarifies the interest and penalties are only assessed where the owner “fraudulently” obtained or was “not entitled to receive” a homestead exemption. Section 196.011(9)(a) states in pertinent parts, In its deliberations on whether to waive the annual application or statement requirement, the governing body shall consider the possibility of fraudulent Page 9 of 18exemption claims which may occur due to the waiver of the annual application requirement. The owner of any property granted an exemption who is not required to file an annual application or statement shall notify the property appraiser promptly whenever the use of the property or the status or condition of the owner changes so as to change the exempt status of the property. If any property owner fails to so notify the property appraiser and the property appraiser determines that for any year within the prior 10 years the owner was not entitled to receive such exemption, the owner of the property is subject to the taxes exempted as a result of such failure plus 15 percent interest per annum and a penalty of 50 percent of the taxes exempted. 57. The Subject Property was not being rented in tax years 2014 through 2016 and Plaintiffs resided therein as their permanent and primary residence. 58. In discussions with Appraiser, Appraiser concedes that they have no evidence that the property was being rented in tax years 2014 through 2016. Instead, Appraiser’s position is that Plaintiffs failed to apply for their Exemptions for the tax years subsequent to the 2018 tax year of the removal of the exemption; nonetheless, the notices indicate that the exemptions were removed due to “rental of homestead.” See Exhibits A and B attached hereto. This is false and inconsistent with Appraiser’s position is that Plaintiffs failed to reapply for their exemptions and is thus subject to a lien for penalties. 59. Even assuming arguendo that Plaintiffs did not timely apply or failed to apply for Exemptions on the Subject Property for tax years 2014 through 2016, , there is no basis for the assessment of penalties in tax years 2014 through 2016 because Plaintiffs were entitled to the exemption as a matter of law. Absent wrongdoing in obtaining an exemption, there is no basis in law to assess penalties and interest. Moreover, notwithstanding entitlement, Plaintiffs did apply for the exemption in time for the 2014 tax year. 60. Since the Property was not being rented in tax years 2014 and subsequently, Plaintiffs were entitled to the Exemptions under Fla. Stat. §§ 196.161(b) and 196.011 because the property was not being used for a non-exempt purpose and Plaintiffs did not defraud the Defendants to obtain a benefit to which they were otherwise entitled. Page 10 of 1861. Even if Plaintiffs had failed to apply for Exemptions for tax years 2014, which is contrary to the facts and Appraiser’s own records, Plaintiffs were entitled to the exemptions, thus the recapture of a tax for failure to apply for Exemptions which Appraiser granted is not a basis under Fla. Stat. § 196.161(1)(b) to assess penalties and interest. Had Plaintiffs simply failed to apply for the Exemptions to which they are entitled, they would simply not the granted the exemptions, but no penalty or interest under Fla. Stat. § 196.161 can be levied for failure to make an application because there is no basis to establish a lack of entitlement. 62. Plaintiffs were permanent residents of the state of Florida and resided in the Subject Property in tax years 2014 through 2016, as such there is no wrongdoing to denying them of entitlement to the homestead exemption, thus there can be no interest or penalty assessed under Fla. Stat. § 196.161. 68. For interest and penalties to be assessed on a recapture tax pursuant to Fla. Stat. § 196.161, the Property owners must first be determined to be “a_ person who was not entitled to a homestead exemption [and] was granted a homestead exemption.” 64. The triggering event for the levy of interest and penalties under Fla. Stat. § 196.161(1)(b) is a lack of entitlement; not whether an application for said exemptions to which Plaintiffs are otherwise entitled, was filed. Thus, even assuming arguendo that, Plaintiffs had not applied for the exemptions after January 1, 2018, which is not the case, Plaintiffs were entitled to the exemptions because the use of the property dictated the “entitlement.” 65. Entitlement under the statute is a matter of actual entitlement to claim the exemption. See Mitchell v. Higgs, 61 So. 8d 1152, 1155 (Fla. 34 DCA 2011) (“The legislature has imposed a series of requirements for eligibility for the homestead tax exemption and a mechanism for recovering the tax savings (plus interest and a penalty) realized by a property owner not actually entitled to claim the exemption.”) Page 11 of 1866. For the penalties to be levied, Plaintiffs would necessarily have had to receive the homestead exemption unlawfully. See also, Fla. Stat. § 196.161(8) (Such lien when filed shall attach to any property which is identified in the notice of lien and is owned by the person who illegally or improperly received the homestead exemption.) 67. With respect to 2014 through 2016, where Appraiser concedes and there is actually no rental of the homestead property, the levy of penalty is contrary to law because Plaintiffs did not obtain the homestead exemption illegally. 68. Moreover, Fla. Stat. § 196.161(1)(b) provides, “if a homestead exemption is improperly granted as a result of a clerical mistake or an omission by Appraiser, the person improperly receiving the exemption shall not be assessed penalty and interest.” 69. Consistent with Fla. Stat. § 196.161(1)(b), Fla. Stat. § 196.161(8) requires that an improper receipt of a homestead exemption would also result in a lien for the recapture tax, however, the improper receipt of the homestead is as defined in Fla. Stat. § 196.161(1)(b). 70. Wholly absent from the records of Appraiser's Office which preceded the filing of the Retractive liens for tax years 2014 through 2016 is any evidence whatsoever that Plaintiffs were not in continuous permanent resident of the Subject Property between January 1 2014 and January 2016, inclusive. 71. Present in Appraiser’s own records is evidence that Plaintiffs visited Appraiser’s office in August 2018 to affirm their residence and use of the property as their homestead in an effort to obtain a Senior Exemption for tax year 2014. Thus, even if Plaintiffs lost their homestead exemption as at January 1, 2013, their subsequent application for the Senior Exemption re-established their homestead exemption for all subsequent years. 72. Appraiser’s own records demonstrate the absence of any inquiry whatsoever whether Plaintiffs moved from the Subject Property with no intent of returning for tax years 2014 through 2016. Fla. Stat § 192.042(). Appraiser's records contain not a scintilla of evidence Page 12 of 18that the Subject. Property ceased to be Plaintiffs’ permanent residence between for Tax years 2014 through 2016. The exemption revocation and retroactive lien are erroneous and unauthorized by sections 196.161(1)(b), Florida Statutes. 73. Even assuming arguendo that Plaintiffs failed to apply for the exemption, the levy of penalties for tax year 2014 through 2016 amounts to a punishment against Plaintiffs for failure to claim a right, because no other likewise situated taxpayer who failed to apply for exemptions to which they are entitled would be charged a penalty. The “claw-back” is limited to the assessment of the property at 100% market value. 74. Since Plaintiffs came to Appraiser on August 29, 2013 to apply for the exemptions in time for tax year 2014, there can be no Penalty and Interest including for tax years 2018 through 2016 because it is at. best an oversight by Appraiser. See Fla. Stat. § 196.161(b) Cif a homestead exemption is improperly granted as a result of a clerical mistake or an omission by Appraiser, the person improperly receiving the exemption shall not be assessed penalty and interest.”) WHEREFORE, Plaintiffs request that this Court enter a judgment in their favor and against Defendants cancelling and nullifying Appraiser’s penalties and interest. charged and accruing from the date the tax is due to the date of the Retroactive Liens for tax years 2013 through 2016 regardless of whether the Exemptions are reinstated; direct Appraiser and Tax Collector and Department of Revenue to refund of all overpayments of tax liens, interest and Penalties; requiring the Tax Collector to correct his records accordingly for tax years 2014 through 2016 to show no retroactive tax liens, interest and Penalties are due; requiring the DOR to properly oversee Appraiser’s by recommending to the Auditor General of the State of Florida audit of the retrospective 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; imposing Page 13 of 18sanctions against. Appraiser, including attorney’s fees for Appraiser’s abuse of process in nullifying Plaintiffs’ homestead exemptions and assessing interest and penalties without legal and factual basis; awarding Plaintiffs their costs incurred in bringing this action pursuant to section 194.192, Florida; and a declaration that Plaintiffs are the prevailing parties; and any other remedy the court deems just and proper. COUNT III - Removal of 2016 Recapture Tax, Interest and Penalties and Overassessment for Subsequent Tax Years 75. Plaintiffs reassert and reaffirms the allegations of paragraphs 1 through 42 and as if fully set forth herein, and further states: 76. Section 196.161 allows Appraiser to file a tax lien against property of a taxpayer who was granted Exemption to which they were not entitled for any year or years within the prior 10 years, to recapture said taxes, and to assess penalties and interest thereon. 77. Section 193.1554(8), provides, Beginning in the year following the year the non-homestead residential property becomes eligible for assessment pursuant to this section, the property shall be reassessed annually on January 1. Any change resulting from such reassessment may not exceed ten (10) percent of the assessed value of the property for the prior year. 78. Assuming arguendo that the Defendants are correct that Plaintiffs were not entitled to homestead on the subject property for tax years 2014 through 2016, the Defendants have not complied with Fla. Stat. § 198.1554(8) in determining the amount of the recapture tax for tax year 2016 because Appraiser’s 2016 assessed value of a purported non-homestead residential property exceed the statutory maximum permissible under Fla. Stat. § 198.1554(8). This violation of Fla. Stat. § 198.1554(8) permeated and continued into the assessed value for tax year 2017 because the 2016 assessed value was also used in 2017. 79. Plaintiffs held an informal meeting with Appraiser and apprised the PA’s office that it’s assessed value for 2016 violated Florida law. After the meeting with the PA and without Page 14 of 18informing Plaintiffs of the exact changes, Appraiser made changes to the 2016 tax lien purporting to correct the recapture tax issue; however, although there were some noted reductions for some “Taxing Authority” the changes still resulted in excessive recapture tax for tax year 2016. 80. Appraiser has refused to correct the issue, insisting that no further changes are required, thus the overassessment in subsequent tax years is the direct consequence of said refusal to comply with Fla. Stat. § 193.1554(8) in tax year 2016. WHEREFORE, Plaintiffs request that this Court enter a judgment in their favor and against Defendants cancelling and nullifying Appraiser’s retroactive tax lien for tax year 2016, penalties and interest charged for tax year 2016 and accruing from the date the tax is due to the date of the Retroactive Liens for tax year 2016 regardless of whether the Exemptions are reinstated; direct Appraiser and Tax Collector and Department of Revenue to refund of all overpayments of Recapture tax, interest and penalties thereon; requiring the Tax Collector to correct his records accordingly for tax year 2016 to show no retroactive tax liens, interest and Penalties are due; requiring the DOR to properly oversee Appraiser’s by recommending to the Auditor General of the State of Florida 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; imposing sanctions against Appraiser, including attorneys fees for Appraiser’s abuse of process in nullifying Plaintiffs’ homestead exemptions and assessing interest and penalties without legal and factual basis; awarding Plaintiffs their costs incurred in bringing this action pursuant to section 194.192, Florida; and a declaration that Plaintiffs are the prevailing parties; and any other remedy the court deems just and proper. Page 15 of 18COUNT IV - Portability of Homestead from 2012 to 2014 Tax Years 81. Plaintiffs reassert and reaffirms the allegations of paragraphs 1 through 42 and as if fully set forth herein, and further states: 82. Plaintiffs are entitled and Appraiser has conceded that Plaintiffs are entitled to homestead exemption for Tax years 2012. 83. Plaintiffs do not contest the removal of the exemptions as it relates to tax year 2018 and as such has paid the Retroactive Tax. See Exhibit E attached hereto. 84. The Save Our Homes (SOH) Amendment passed by the voters in 1992, caps annual increases in the assessed value of a homestead to three percent of the assessment for the prior year or the percent change in the Consumer Price Index, whichever is lower. See Art. VII, § 4(d€)(), Fla. Const. 85. In 2008, voters approved a separate constitutional amendment that permits a homeowner to transfer the benefit accrued under the SOH Amendment to a new homestead established within two years of abandonment of the prior homestead. See Art. VI, § 4(d)(8), Fla. Const. The 2008 portability amendment allows a homeowner to transfer some or all of an SOH benefit to reduce the assessed value of a qualifying new homestead. The SOH benefit is the difference between the market value (known as just value) and assessed value (as capped by the SOH amendment) of the former homestead as of January 1 of the year the former homestead is abandoned. See Fla. Stat. § 198.155(8); and Fla. Const. Art. VII § 4(d)(8). 86. In pertinent part, Art. VII, § 4(d)(8)(a)(1), Fla. Const., provides A person who establishes a new homestead as of January 1, 2009, or January 1 of any subsequent year and who has received a homestead exemption pursuant to Section 6 of this Article as of January 1 of either of the two years immediately preceding the establishment of the new homestead is entitled to have the new homestead assessed at less than just value. [] The assessed value of the newly established homestead shall be determined as follows: 1. If the just value of the new homestead is greater than or equal to the just value of the prior homestead as of January 1 of the year in which the prior homestead was abandoned, the assessed value of the new homestead shall be Page 16 of 18the just value of the new homestead minus an amount equal to the lesser of $500,000 or the difference between the just value and the assessed value of the prior homestead as of January 1 of the year in which the prior homestead was abandoned. Thereafter, the homestead shall be assessed as provided in this subsection. 87. Since Plaintiffs abandoned their homestead as at January 1, 2013, re-established their homestead prior to January 1, 2014, and the value of their newly established homestead as at January 1, 2014 was greater than the value of their abandoned homestead, Plaintiffs are entitled to the portability attributes of their homestead. 88. By unjustly denying Plaintiffs their homestead exemption for tax years 2014 and subsequent years, Appraiser has violated the Florida Constitution by unjustly basing all tax years subsequent to 2018 on values that deprives Plaintiffs of their constitutional portability benefits. This constitutes a material injury to Plaintiffs. WHEREFORE, Plaintiffs request that this Court enter a judgment in their favor and against Defendants cancelling and nullifying Appraiser’s retroactive tax lien for tax years 2014 through 2016, penalties and interest charged for tax year 2016 and accruing from the date the tax is due to the date of the judgment; direct Appraiser to reinstate Plaintiffs’ homestead and senior exemptions for tax years 2014 through 2016; direct Appraiser to port the attributes of the abandoned homestead to the newly established homestead commencing 2014 and subsequent years; direct Appraiser and Tax Collector and Department of Revenue to refund of all overpayments; requiring the Tax Collector to correct his records accordingly for tax year 2016 to show no retroactive tax liens, interest and Penalties are due; requiring the DOR to properly oversee Appraiser’s by recommending to the Auditor General of the State of Florida 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; Direct the DOR to review Appraiser’s practices employed to determine the retroactive denial of the 2016 Page 17 of 18exemptions and the consequential denial of portability benefits to Plaintiffs, imposing sanctions against Appraiser, including attorney’s fees for Appraiser’s abuse of process in nullifying Plaintiffs’ homestead exemptions and assessing interest and penalties without legal and factual basis; awarding Plaintiffs their costs incurred in bringing this action pursuant to section 194.192, Florida; and a declaration that Plaintiffs are the prevailing parties; and any other remedy the court deems just and proper. DEMAND FOR JURY TRIAL Plaintiffs demand a jury trial for all matters herein triable as of right before a jury. Department of Revenue v. Printing House, 644 So. 2d 498, 501 (Fla. 1994). Respectfully submitted this 12 day of August, 2019, André Gibson, Chartered /s/ André A, Gibson. André A. Gibson Attorney for Plaintiffs, Raul Mejia and Virginia Lopez. Florida Bar Number: 0635529 45 NE 67th Street, North Miami Beach, FL 33162 Telephone: (3805) 652-4900 Fax: (805) 808-3495 E-Mail: AAGibson@Gibsontaxlaw.com Secondary E-Mail: Efile@Gibsontaxlaw.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished via electronic mail to Timothy Dennis at Timothy. Dennis@myfloridalegal.com, Jon.Annette@myfloridalegal.com, Rebecca.Padgett@myfloridalegal.com; and Michael Mastrucci, Assistant County Attorney, mastrucc@miamidade.gov; emily@miamidade.gov, this 12th day of August, 2020. /s/ André A, Gibson. André A. Gibson Attorney for Plaintiff, Raul Mejia and Virginia Lopez Page 18 of 18EXHIBIT A 45 NE 167" STREET, NORTH MIAMI BEACH, FL 33162 TELEPHONE: 305-652-4900 || TELEFAX: 305-808-3495 AAGibson@Gibsontaxlaw.comMIAMI-DADE COUNTY PROPERTY APPRAISER INVESTIGATION UNIT PEDRO J. GARCIA PROPERTY APPRAISER CERTIFIED MAIL NOTICE OF INTENT LIEN RETURN RECEIPT REQUESTED 7013 2250 0001 3711 0573 December 5, 2016 RAUL MEJIA VIRGINIA LOPEZ JTRS 201 178 DR #531 MIAMI, FL 33160-2898 RE: Violation Property: 201 178 DR 531 FOLIO: 31-2211-039-1220 Dear Property Owners: The Miami-Dade County Property Appraiser’s Office reviewed the ad valorem property tax benefit(s) for the above-captioned property and determined that the owner(s) of record was/were not entitled to the Homestead Exemption. In accordance with sec. 196.161, Florida Statutes, enclosed is the Notice of Tax Lien for Homestead Exemption and/or Limitation Exclusion (DR-453) reflecting applicable tax years, value exempted, taxes exempted, and penalties and interest. The Notice of Tax Lien for Homestead Exemption and/or Limitation Exclusion (DR-453) will be recorded with the Clerk of the Circuit Court on or about January 5, 2017 as required by sec. 196.161, Florida Statutes. The purpose of this lien is to recover the ad valorem taxes lost when the property received those benefit(s) to which it was not entitled. In lieu of recordation of the lien, you may pay the taxes and penalties and interest (if applicable) in the amount of $23,977.68. Payment must be in the form of a cashier’s check or money order made payable to the “Miami-Dade County Tax Collector” and mailed to the Tax Collector’s Office, 200 NW 2nd Avenue, Miami, Florida 33128. Please note, if your lien contains penalties and interest, the amount specified in this Notice will be subject to change beginning in 30 days. For questions regarding payments or payment arrangements, please contact the Tax Collector’s Office at 305-270-4916. If you would like to discuss the Miami-Dade County Property Appraiser’s Office determination of non- entitlement of benefits, please contact Mr. Julio Guas at 305-375-4237 or 305-375-3402. You may also email the Investigations Section at Invcustserv@ miamidade.gov. Sincerely, a Ernesto Alonso CFE Investigations Supervisor Office of the Property Appraiser 111 NW IST STREET, SUITE 710 * MIAMI, FLORIDA + 33128 PHONE: 305-375-3402 + BAX: 305-375-1912 WEB SITE: WWW.MIAMIDADE.GOV/PA.: NOTICE OF TAX LIEN DR-453 : FOR EXEMPTIONS AND Rule 12016 noe H ASSESSMENT LIMITATIONS enous FLORIDA Miami-Dade County, Florida RAUL MEJIA, VIRGINIA LOPEZ JTRS (taxpayer) has received exemption(s) and/or assessment limitation(s) totaling $12,743.48 for 5 years. The property appraiser has discovered that the taxpayer was not legally entitled to receive the exemption(s) and/or assessment limitation because: RENTAL OF HOMESTEAD. Sections 193.155(10), 193,1554(10), 193.1555(10), 193.501(9), 196.011(9), 196.075(9), 196.161(1) and 196.183, F.S., require a lien on the property to recover unpaid taxes. The property appraiser will recover from the taxpayer taxes due, a 50 percent penalty and 15 percent interest for any year or years within the last ten years in which the taxpayer was not entitled to, but was granted, a tax exemption or assessment limitation. When this document is recorded, it becomes a lien on the real property addressed and legally owned by the taxpayer in Florida. FOR OFFICIAL USE ONLY Taxpayer RAUL MEJIA, VIRGINIA LOPEZ JTRS Parcel ID 31-2211-039-1220 / Case # 13809 name Address 201178 DR531 Legal LE CARTIER CONDO Sunny Isles Beach, 33160-2875 description UNIT 531 UNDIV .64496% Column 1 Column 2 Column 3 Column 4 Column 5 Tax Year/ Date tax due Reason for Lien Taxes Due Penalty Interest 2011 / 11/1/2011 RENTAL OF HOMESTEAD 2,098.53, 1,049.27 +STC 2012 / 11/1/2012 RENTAL OF HOMESTEAD 2,024.96 1,012.48 *STC 2013 / 11/1/2013 RENTAL OF HOMESTEAD 2,695.54 1,347.78 *STC 2014 / 11/1/2014 RENTAL OF HOMESTEAD 2,998.48 1,499.25 *STC 2015 / 11/1/2015 RENTAL OF HOMESTEAD 2,925.97 1,462.99 *STC Tax Collector: The 50 percent penalty is calculated individually on each annual Total for Column 6 (subtotal) exemption or assessment limitation. Interest is based on the taxes exempted or excluded each year from the date the taxes become due for each assessment until the lien is Added fees Property Appraiser satisfied. and costs The tax collector must collect any fees and costs which the property appraiser or the tax paid by: Tax Collector collector has incurred in filing and collecting this lien. TOTAL DUE *STC See Tax Collector Column 6 TOTAL (34445) *STC *STC *STC *STC *STC *STC N/A 10.00 *sTC | certify that | have read this notice of tax lien and the facts in it are true. If prepared by someone other than the property appraiser, this declaration is based on all information of which he or she has knowledge. Deputy Property Appraiser Signature Title Date Payment must include all unpaid taxes, interest, penalties, fees, and costs, or the lien will not be satisfied,MIAMI-DADE COUNTY PROPERTY APPRAISER INVESTIGATION UNIT PEDRO J. GARCIA PROPERTY APPRAISER December 5, 2016 RAUL MEJIA VIRGINIA LOPEZ JTRS 201 178 DR #531 MIAMI, FL 33160-2898 Property Address: 201 178 DR 531 Folio: 31-2211-039-1220 Dear RAUL MEJIA: Pursuant to Section 196.161, Florida Statutes, you were not entitled to the exemption received on the above referenced property for 2016. Therefore, to avoid a lien including penalties and interest from being filed, the Office of the Property Appraiser requires your signature below to remove the exemption and applicable assessment limitations. If you have any questions regarding this matter, you may contact Mr. Julio Guas at 305-375-4237 or 305-375-3402, or via email at Invcustserv@miamidade.gov. Sincerely, (a Ernesto Alonso CFE Investigations Supervisor Office of the Property Appraiser | hereby authorize the Office of the Property Appraiser to remove the Homestead Exemption at the above referenced address for 2016. NAME SIGNATURE DATE SUITE 710 + MIAMI, FLORIDA + 33128 PHONE: 305-375-3402- + FAX: 305-375-1912 WEB SITE: WWAV.MIAMIDADE.GOV/PA.EXHIBIT B 45 NE 167" STREET, NORTH MIAMI BEACH, FL 33162 TELEPHONE: 305-652-4900 || TELEFAX: 305-808-3495 AAGibson@Gibsontaxlaw.comMIAMI-DADE COUNTY PROPERTY APPRAISER INVESTIGATION UNIT PEDRO J. GARCIA PROPERTY APPRAISER CERTIFIED MAIL NOTICE OF INTENT TO LIEN RETURN RECEIPT REQUESTED 7017 1070 0000 0395 9089 July 3, 2017 RAUL MEJIA VIRGINIA LOPEZ 201 178 DR #531 MIAMI, FL 33160-2898 RE: Violation Property: 201 178 DR 531 FOLIO: 31-2211-039-1220 Dear Property Owner: The Miami-Dade County Property Appraiser’s Office reviewed the ad valorem property tax benefit(s) for the above-captioned property and determined that the owner(s) of record was/were not entitled to the Homestead Exemption. In accordance with sec. 196.011 and 196.161, Florida Statutes, enclosed is the Notice of Tax Lien for Homestead Exemption and/or Limitation Exclusion (DR-453) reflecting applicable tax years, value exempted, taxes exempted, and penalties and interest. The Notice of Tax Lien for Homestead Exemption and/or Limitation Exclusion (DR-453) will be recorded with the Clerk of the Circuit Court on or about August 1, 2017 as required by sec. 196.011 and 196.161, Florida Statutes. The purpose of this lien is to recover the ad valorem taxes lost when the property received those benefit(s) to which it was not entitled. In lieu of recordation of the lien, you may pay the taxes and penalties and interest (if applicable) in the amount of $5,168.75. Payment must be in the form of a cashier’s check or money order made payable to the “Miami-Dade County Tax Collector” and mailed to the Tax Collector’s Office, 200 NW 2nd Avenue, Miami, Florida 33128. Please note, if your lien contains penalties and interest, the amount specified in this Notice will be subject to change beginning in 30 days. For questions regarding payments or payment arrangements, please contact the Tax Collector’s Office at 305-270-4916. If you would like to discuss the Miami-Dade County Property Appraiser’s Office determination of non- entitlement of benefits, please contact Mr. Julio Guas at 305-375-4237 or 305-375-3402. You may also email the Investigations Section at Invcustserv@miamidade.gov. Sincerely, (a Ernesto Alonso CFE Investigations Supervisor Office of the Property Appraiser 111 NW 1ST STREET, SUITE 710 + MIAMI, FLORIDA + 33128 PHONE: 305-375-3402 * BAX: 305-375-1912 WEB SITE: WWW.MIAMIDADE.GOV/PANOTICE OF TAX LIEN DR-453 i FOR EXEMPTIONS AND aye ok 848 ASSESSMENT LIMITATIONS ent oan FLORIDA Miami-Dade County, Florida RAUL MEJIA, VIRGINIA LOPEZ JTRS (taxpayer) has received exemption(s) and/or assessment limitation(s) totaling $3,361.79 for 1 year. The property appraiser has discovered that the taxpayer was not legally entitled to receive the exemption(s) and/or assessment limitation because: RENTAL OF HOMESTEAD. Sections 193.155(10), 193.1554(10), 193.1555(10), 193.501(9), 196.011(9), 196.075(9), 196.161(1) and 196.183, F.S., require a lien on the property to recover unpaid taxes. The property appraiser will recover from the taxpayer taxes due, a 50 percent penalty and 15 percent interest for any year or years within the last ten years in which the taxpayer was not entitled to, but was. granted, a tax exemption or assessment limitation. When this document is recorded, it becomes a lien on the real property addressed and legally owned by the taxpayer in Florida. FOR OFFICIAL USE ONLY Taxpayer RAUL MEJIA, VIRGINIA LOPEZ JTRS Parcel ID 31-2211-039-1220 / Case # 14771 name Address 201178 R531 Legal LE CARTIER CONDO Sunny Isles Beach, 33160-2875 description UNIT 532 UNDIV .64496% INT IN COMMON ELEMENTS Column 1 Column 2 Column 3 Column 4 Column5 Column6 Tax Year/ Date tax due Reason for Lien Taxes Due Penalty Interest. TOTAL (3+4+5) 2016 / 11/1/2016 RENTAL OF HOMESTEAD 3,361.79 1,680.90 ‘STC *STC Tax Collector: The 50 percent penalty is calculated individually on each annual Total for Column 6 (subtotal) *STC exemption or assessment limitation. Interest is based on the taxes exempted or excluded each year from the date the taxes become due for each assessment until the lien is Added fees Property Appraiser N/A satisfied. and costs The tax collector must collect any fees and costs which the property appraiser or the tax paid by: Tax Collector 10.00 collector has incurred in filing and collecting this lien. TOTAL DUE *STC *STC See Tax Collector | certify that | have read this notice of tax lien and the facts in it are true. If prepared by someone other than the property appraiser, this declaration is based on all information of which he or she has knowledge. Deputy Property Appraiser. Signature Title Date Payment must include all unpaid taxes, interest, penalties, fees, and costs, or the lien will not be satisfied.EXHIBIT C 4