Answer: RAUL MEJIA ET AL VS PEDRO LOPEZ (PROPERTY APPRAISER) ET AL

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                                Filing # 85416372 E-Filed 02/25/2019 10:36:41 AM

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA

RAUL MEJIA, and VIRGINIA LOPEZ,

Plaintiffs,

v. Case No. 2018-012371-CA

PEDRO GARCIA, as Property Appraiser

of Miami-Dade County; LEON M.
BIEGALSKI, as Executive Director of

the Florida Department of Revenue, MARCUS
SAIZ DE LA MORA, as Tax Collector of
Miami-Dade County,

Defendants.
/

DEFENDANT JIM ZINGALE’S AMENDED!
ANSWER TO SECOND AMENDED COMPLAINT

Defendant Jim Zingale, as Executive Director of the Florida Department of Revenue (“the
Department”) ?, by and through undersigned counsel, responds to the allegations contained in the
Second Amended Complaint served by Raul Mejia and Virginia Lopez (“Plaintiffs”), deemed filed
on February 5, 2019, and states as follows.

Nature of the Case

1. Admitted.

Parties

2. The Department is without knowledge sufficient to admit or deny the allegations

' The Answer is amended to remove duplicate Paragraphs numbered 53-57 and to correct the
answer to Paragraph number 56.

? Jim Zingale was named Executive Director of the Florida Department of Revenue on January
29, 2019. Pursuant to Florida Rule of Civil Procedure 1.260(d)(1), Jim Zingale is automatically
substituted as a party to this action.contained in Paragraph 2.

3. Admitted.
4. Admitted.
5 Admitted.
Jurisdiction
6 The Department admits that if all jurisdictional prerequisites have been met,

jurisdiction is proper in the circuit court, but is without knowledge sufficient to admit or deny
whether all such requirements have been met. Chapter 194, Florida Statutes, Article V, sections 5
and 20 of the Constitution of the State of Florida, and section 86.011, Florida Statutes, speak for
themselves.
Venue

7 The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 7.
General Allegations

8 The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 8

9 The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 9.

10. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 10.

11. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 11.12. The Department admits that Exhibit “A” is attached to the Amended Complaint and
speaks for itself. The Department is without knowledge sufficient to admit or deny the remaining
allegations contained in paragraph 12.

13. The Department admits that Exhibit “C” is attached to the Amended Complaint and
speaks for itself. The Department is without knowledge sufficient to admit or deny the remaining
allegations contained in paragraph 13.

14 The Department admits that Exhibits “B” and “D” are attached to the Amended
Complaint and speak for themselves. The Department is without knowledge sufficient to admit or
deny the remaining allegations contained in paragraph 14.

15. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 15, inclusive of subparagraphs a-b

16. | The Department is without knowledge sufficient to admit or deny the allegations
contained in paragraph 16.

17. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 17

18 The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 18

19. The Department admits the first sentence of Paragraph 19. The Department admits
the second sentence of Paragraph 19, but denies that Plaintiffs are entitled to any relief from the
Department. Exhibit “J” speaks for itself.

20. — Denied.21. | The Department admits that Exhibit “E” is attached to the Second Amended
Complaint and speaks for itself. The Department is without knowledge sufficient to admit or deny
the remaining allegations contained in Paragraph 21

22. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 22.

23. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 23.

24. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 24.

25. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 25.

26. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 26

27. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 27

28 The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 28

29. Denied as stated. The Department has not placed a lien against the Plaintiffs’
property. The Department is without knowledge sufficient to admit or deny the remaining
allegations contained in paragraph 29.

30. Denied as stated. The Department has not placed a lien against the Plaintiffs’
property. The Department is without knowledge sufficient to admit or deny the remaining

allegations contained in paragraph 30.31. Denied as stated. The Department has not placed a lien against the Plaintiffs’
property. The Department is without knowledge sufficient to admit or deny the remaining
allegations contained in paragraph 31

32. The Department is without knowledge sufficient to admit or deny the allegations
contained in paragraph 32.

33. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 33.

34. Section 86.011, Florida Statutes, speaks for itself.

35 Section 86.051, Florida Statutes, speaks for itself.

36. Section 86.111, Florida Statutes, speaks for itself.

37. Section 86.101, Florida Statutes, speaks for itself.

38. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 38

39. The Department admits that Exhibits “E,” “F,” and “G” are attached to the Second
Amended Complaint and speak for themselves. The Department is without knowledge sufficient
to admit or deny the remaining allegations contained in Paragraph 39, inclusive of subparagraphs
a-c

40. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 40

COUNT I- Removal of Tax Lien
(As to Tax Years 2014 through 2016)

41. The Department realleges and restates its answers to Paragraphs 1 through 40 as if
fully set forth herein.

42. The Department admits that Exhibits “A” through “D,” “H,” and “I” are attachedto the Amended Complaint and speak for themselves. The Department is without knowledge
sufficient to admit or deny the remaining allegations contained in Paragraph 42.

43 Exhibits “A” and “B” speak for themselves. The Department is without knowledge
sufficient to admit or deny the remaining allegations contained in Paragraph 43

44 The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 44

45 Section 196.161, Florida Statutes, speaks for itself.

46. Sections 196.061 and 196.193(3) and (4), Florida Statutes, and Florida Attorney
General Opinion 2008-13 speak for themselves. The Department is without knowledge sufficient
to admit or deny the remaining allegations contained in paragraph 46

47. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 47

48. The Department is without knowledge sufficient to admit or deny the allegations
contained in paragraph 48

49. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 49.

COUNT II - Removal of Tax Lien Interest and Penalties
(As to Tax Years 2014-2016)

50. The Department realleges and restates its answers to Paragraphs 1 through 40 as if
fully set forth herein.

51 The Department admits that Exhibits “A” through “D,” “H,” and “T” are attached
to the Amended Complaint and speak for themselves. The Department is without knowledge
sufficient to admit or deny the remaining allegations contained in Paragraph 51.

52. Section 196.161, Florida Statutes, speaks for itself. The Department is withoutknowledge sufficient to admit or deny the remaining allegations contained in Paragraph 52

53 Sections 196.061 and 196.193(3) and (4), Florida Statutes, and Florida Attorney
General Opinion 2008-13 speak for themselves. The Department is without knowledge sufficient
to admit or deny the remaining allegations contained in Paragraph 53.

54, Section 196.011(9)(a), Florida Statutes, speaks for itself.

55. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 55.

56. The Department admits that Exhibits A and B are attached to the Amended
Complaint and speak for themselves. The Department is without knowledge sufficient to admit or
deny the remaining allegations contained in Paragraph 56

57. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 57

58. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 58.

59. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 59.

60. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 60.

61. Section 196.161, Florida Statutes, speaks for itself. The Department is without
knowledge sufficient to admit or deny the remaining allegations contained in Paragraph 61.

62. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 62.63. The decision of Mitchell v. Higgs, 61 So. 3d 1152 (Fla. 3rd DCA 2011) speaks for
itself.

64. Section 196.161(3), Florida Statutes, speaks for itself. The Department is without
knowledge sufficient to admit or deny the remaining allegations contained in Paragraph 64

65 The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 65

66. Section 196.161(1)(b), Florida Statutes, speaks for itself.

67. Sections 196.161(1)(b) and 196.161(3), Florida Statutes, speak for themselves.
The Department is without knowledge sufficient to admit or deny the remaining allegations
contained in Paragraph 67

68 The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 68

69. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 69.

70. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 70.

71. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 71.

72. Section 196.161(1)(b), Florida Statutes, speaks for itself. The Department is
without knowledge sufficient to admit or deny the remaining allegations contained in Paragraph
72.

COUNT III - Removal of 2016 Recapture Tax, Interest and Penalties and
Overassessment for Tax Year 2017

73. The Department realleges and restates its answers to Paragraphs 1 through 40 as iffully set forth herein.

74 Section 196.161, Florida Statutes, speaks for itself. The Department is without
knowledge sufficient to admit or deny the remaining allegations contained in Paragraph 74.

75. Section 193.1554(3), Florida Statutes, speaks for itself.

76. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 76

77 The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 77

COUNT IV - Portability of Homestead from 2012 to 2014 Tax Years

78. The Department realleges and restates its answers to Paragraphs 1 through 40 as if
fully set forth herein.

79. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 79

80. Exhibit “E” speaks for itself. The Department is without knowledge sufficient to
admit or deny the remaining allegations contained in Paragraph 80.

81 Admitted.

82. Admitted

83 Article VIL section 4(d)(8)(a), F/orida Constitution, speaks for itself.

84. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 84.

85. The Department is without knowledge sufficient to admit or deny the allegations

contained in Paragraph 85.COUNT V - Unconstitutionality of Fla. Stat. §§ 196.161 and 196.011(9)(a)

86. The Department realleges and restates its answers to Paragraphs 1 through 40 as if
fully set forth herein.

87. Section 196.161, Florida Statutes, speaks for itself. The Department is without
knowledge sufficient to admit or deny the remaining allegations contained in Paragraph 87.

88. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 88.

89. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 89.

90. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 90.

91. — The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 91

92. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 92

93 The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 93

94. The Department is without knowledge sufficient to admit or deny the allegations
contained in Paragraph 94

95 Sections 196.161 and 196.011(9)(a), Florida Statutes, speak for themselves.

96. Denied.

97. Any allegation contained within the Second Amended Complaint not expressly

addressed in a numbered paragraph above is hereby denied.

10DEFENSES
First Defense: Failure to State a Cause of Action.

The United States Supreme Court has held on multiple occasions, including in National
Private Truck Council, Inc. v. Oklahoma Tax Commission, 515 U.S. 582, 115 S. Ct. 2351, (1995),
that 42 U.S.C. § 1983 does not call for either federal or state courts to award injunctive and
declaratory relief in state tax cases when an adequate legal remedy exists. See id., 515 U.S. at 589,
115 S. Ct. at 2355. Florida provides an adequate legal remedy in which the taxpayer may raise all
constitutional objections to the tax. See, e.g., Winicki v. Mallard, 783 F.2d 1567, 1570 (11th Cir.
1986). Accordingly, the allegations in Paragraph 95, to the extent they rely upon 42 U.S.C. § 1983
as authority for suit, fails to state a cause of action

Second Defense: No Entitlement to Attorney’s Fees.

Plaintiffs may not recover an award of attorney’s fees against the Department, because they
have failed to provide the Department of Financial Services with notice of the suit as required by
section 284.30, Florida Statutes, and has failed to plead compliance with section 284.30. See
Heredia v. Dep’t of Hwy. Safety and Motor Vehicles, 547 So. 2d 1007, 1008 (Fla. 3d DCA 1989);
Hale v. Dep't of Revenue, 973 So. 2d 518, 522 (Fla. 1st DCA 2008).

Third Defen: o Entitlement to Attorney’s Fees.

Since state courts may not grant relief under 42 U.S.C. § 1983, attorney’s fees may not be
awarded in state court actions involving state tax matters under 42 U.S.C. § 1988. See Natl
Private Truck Council, Inc., 515 U.S. at 592.

WHEREFORE, Defendant Jim Zingale, as Executive Director of the Florida Department
of Revenue, requests entry of judgment in his favor, an award of costs, and such other relief as

deemed appropriate.

11RESPECTFULLY SUBMITTED this 25th day of February, 2019

ASHLEY MOODY
ATTORNEY GENERAL

S/Timothy E. Dennis
TIMOTHY E. DENNIS

Chief Assistant Attorney General
Florida Bar No. 575410

Office of the Attorney General
Revenue Litigation Bureau

PL-01, The Capitol

Tallahassee, FL 32399-1050

(850) 414-3300

Primary Email:
Timothy.Dennis@myfloridalegal.com
Secondary Emails
Jon.Annette@myfloridalegal.com
Rebecca.Padgett@myfloridalegal.com

Counsel for Defendant
Jim Zingale, Executive Director
Florida Department of Revenue

CERTIFICATE OF SERVICE

THEREBY CERTIFY that on a true and correct copy of the foregoing has been furnished
by e-mail to Andre’ A Gibson, Esquire, 45 NE 67th Street, North Miami Beach, FL 33162,
AAGibson@Gibsontaxlaw.com, Efile@Gibsontaxlaw.com (Counsel for the Plaintiffs); Michael
J. Mastrucci, Esquire, Assistant County Attorney, Stephen P. Clark Center, Suite 2810, 111
Northwest First Street, Miami, Florida 33128, mastrucc@miamidade.gov,
wilma.morillo@miamidade.gov (Counsel for Property Appraiser and Tax Collector), on this 25th

day of February, 2019.

S/Timothy E. Dennis
TIMOTHY E. DENNIS

Chief Assistant Attorney General

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