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Filing # 84331744 E-Filed 02/04/2019 08:11:13 AM
IN THE CIRCUIT COURT OF THE ELEVENTH
JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA
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.
/
PLAINTIFFS’ RESPONSE TO DEFENDANT DEPARTMENT OF REVENUE’S
OBJECTION TO PLAINTIFFS’ MOTION FOR LEAVE TO AMEND COMPLAINT
Plaintiffs, Raul Mejia and Virginia Lopez, (hereinafter, “Plaintiffs”) by and through
their undersigned counsel, files this Response to Defendant, Department of Revenue (“DOR”)
Objection to Plaintiff's Motion to Amend the Complaint and state:
1. DOR objects to Plaintiffs’ proposed Second Amended Complaint on the basis that
paragraph 20 thereof, fails to state a cause of action against the DOR. Motion at 4 4.
Additionally, DOR cites to Trianon Park Condo. Ass’n, Inc. v. City of Hialeah, 468 So. 2d 912,
914-15 (1985), for the proposition that “there has never been a common law duty to individual
citizens for the enforcement of police power functions,” and argues that the DOR’s authority
and control over the Property Appraiser are planning level, discretionary policy decisions for
which DOR owes no specific duty to Plaintiffs and in such acts, it is protected by sovereign
immunity. Motion at § 5. We would expect this argument from an agent of King George,
reincarnated, but not from an agent of our government charged with upholding the rights of
citizens under our constitutional system. DOR misstates the law, the nature of its
relationship with the Property Appraiser, and the underlying issues in this case.
Page 1 of 8Sovereign immunity does not bar actions against the state involving
violations of constitutional or statutory rights.
2. First, the court in Trianon Park Condo. Ass’n, Inc., 468 So. 2d at, 918, n. 5 held,
under the constitutional doctrine of separation of powers, the judicial branch
must not interfere with the discretionary functions of the legislative or
executive branches of government absent a violation of constitutional or
statutory rights.
Thus, even assuming that the acts were planning level functions, there is no immunity where
constitutional or statutory violations are at issue. As such, DOR misstates the case by
omitting that Plaintiffs seek redress for the statutory and constitutional violation of
Plaintiffs’ rights to their constitutionally protected homestead where the Property Appraiser,
without factual basis, retroactively revoked Plaintiffs’ homestead and senior exemptions and
imposed a retroactive tax lien without due process of law.
3. Indeed, the Court in Trianon Park addressed the limits of sovereign immunity and
articulated the test for determining the line of demarcation between discretionary and other
executive or administrative processes, specifically:
(1) Does the challenged act, omission, or decision necessarily involve a basic
governmental policy, program, or objective? (2) Is the questioned act, omission,
or decision essential to the realization or accomplishment of that policy,
program, or objective as opposed to one which would not change the course or
direction of the policy, program, or objective? (3) Does the act, omission, or
decision require the exercise of basic policy evaluation, judgment, and
expertise on the part of the governmental agency involved? (4) Does the
governmental agency involved possess the requisite constitutional, statutory,
or lawful authority and duty to do or make the challenged act, omission, or
decision?
In applying this test to a particular set of circumstances, if all the questions
can be answered in the affirmative, then the governmental conduct is
discretionary and “nontortious.” If one or more questions call for a negative
answer, then further inquiry is necessary, depending upon the facts and
circumstances involved.
Id. at 918-919. While the foregoing test applies to common law causes of action, on the facts
of this case, each test question is resoundingly answered in the negative, because the acts
involves a statutory and constitutional violation.
Page 2 of 84. The DOR through its’ own bulletin admits, “DOR oversees Appraiser’s compliance
with constitutional and statutory requirements for property [] exemptions.” Complaint at
4 19 citing Exhibit J. This is neither the exercise of “planning level functions,” nor “police
power functions” as DOR argues. The bulletin defines the DOR’s constitutional duty to
ensure the property appraiser protects the Plaintiffs’ private constitutional rights. DOR has
no discretion whether to comply with the Florida and Federal constitutions.
5. DOR has not shown how Plaintiffs’ claims, based on constitutional violations, are
discretionary policy decisions of the DOR. Indeed, even where the actions of the DOR are
discretionary, where the DOR’s acts violate a statute or the constitution there is no sovereign
immunity. See Trianon Park Condo. Ass’n, Inc., 468 So. 2d at, 918 (“The judicial branch has
no authority to interfere with the conduct of those functions unless they violate _a
constitutional or statutory provision.”) In the instant case, the Defendants have violated
Plaintiffs’ constitutional rights, hence sovereign immunity does not apply.
6. In State v. Leone, 118 So.2d 781, 784 (Fla. 1960), the Florida Supreme Court
articulated the limits of police power when applied to individual rights stating,
Police power may be used only against those individual rights which are
reasonably related to the accomplishment of the desired end which will serve
the public interest. This means that the interference with, or sacrifice of the
private rights, must be necessary, or essential to the reasonable
accomplishment of the desired goal. Such interference or sacrifice of private
rights can never be justified nor sanctioned merely to make it more convenient
or easier for the state to achieve the desired end. If there is a choice of ways in
which government can reasonably attain a valid goal necessary to the public
interest, it must elect that course which will infringe the least on the rights of
the individual.
Id. In the instant case, the issue is not an overt act that violate the Plaintiffs’ individual
constitutional rights, but refusal to act to protect their rights. Since DOR failed to comply
with its own mandate to protect Plaintiffs’ private rights, DOR cannot demonstrate was
justified in refusing to act or was necessary, or essential to the reasonable accomplishment.
Page 3 of 8of the desired goal necessary to the public interest. The Fourteenth Amendment to the
Constitution of the United States forbids the States to make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States, or deprive any person
of life, liberty, or property without due process of law, or deny to any person within its
jurisdiction the equal protection of the laws. See U.S. Const. amend. 14, § 1; See also Fla.
Const. art. I, § 9. Plaintiffs real property at issue in this action, and the homestead exemption
are private property rights. See Goss v. Lopez, 419 U.S. 565, 572, 95S. Ct. 729, 42 L. Ed. 2d
725 (1975) (Protected interests in property are [] created, and their dimensions defined by,
an independent source “such as state statutes or rules entitling the citizen to certain
benefits.”); Moser v. Barron Chase Secies., Inc., 783 So. 2d 281, 236, n. 5 (Fla. 2001)(The
notion of a property interest encompasses a variety of valuable interests that go well beyond
the traditional view of property.); Metro. Dade County v. Sokolowski, 489 So. 2d 982, 934 (Fla.
3d DCA 1983) (“A property interest may be created by statute, ordinance or contract, as well
as by policies and practices [] which supports claims of entitlement.)
Even if this case involved purely common law causes of actions, the
facts and circumstances tests of Trianon Park Condo. Ass’n, Inc.
precludes dismissal
7. Significantly, the test in Trianon Park Condo. Ass'n, Inc., 468 So. 2d at, 918., is a facts
and circumstances test, which cannot be resolved on a motion to dismiss. See Raney v. Jimmie
Diesel Corp., 362 So. 2d 997, 998 (Fla. 8d DCA 1978) (“The function of a motion to dismiss a
complaint is to raise as a question of law the sufficiency of the facts alleged to state a cause
of action. A court is not permitted to speculate as to whether a plaintiff will be able to prove
the allegations, rather a court is required to accept all well pleaded allegations contained in
the complaint as true.”) The motion to dismiss is improper, because there are issues of
material fact as to whether DOR is exercising pure planning level functions of purely
governmental functions, and whether there are constitutional and statutory violations.
Page 4 of 8‘The allegations of the Complaint are sufficient to make DOR a
material party for discovery, additional causes of actions, and for
attorney’s fees under Fla. Stat. § 57.111
8. DOR’s defense to original complaint is that DOR is a nominal party to the action and
that no relief is sought against the DOR. DOR’s attack on the Plaintiffs’ Second Amended
Complaint is an attempt to keep DOR as a nominal party. This, however, is an affirmative
defense and Plaintiffs are not required to plead their claim in anticipation of DOR’s
affirmative defenses. See Johnson v. Southern Bell Telephone and Telegraph Co., 169 So.2d
36, 37 (Fla. 83d DCA 1964) (It [] is only necessary for the complaint to state facts sufficient to
indicate that a cause of action exists and not to anticipate affirmative defenses.) The
allegations at paragraphs 19 and 20 are sufficient to make DOR a material party.
9. First, these allegations are sufficient to enable Plaintiffs to conduct discovery as to
the extent of DOR’s failure to perform its constitutional duties to ascertain the basis for
stating a proper cause of action in the case. Indeed, on July 20, 2017, over 8 months prior to
the commencement of this action, the undersigned counsel contacted the Florida Attorney
General's Office, as counsel for the DOR, to inquire into whether the DOR will intervene to
address the constitutional issues alleged in the complaint, so as to avoid this suit altogether.
Exhibit A at 1 attached hereto. The matter was referred to Mr. Timothy Dennis who is
DOR’s counsel in the instant case. Mr. Dennis ignored the request to intervene and resolve
the issues. Exhibit A at 1 attached hereto. As such, DOR had actual knowledge of the
violations and refused to take any action. Plaintiffs allegations in paragraph 20 is based on
a direct and specific failure to perform its constitutional duties.
10.Second, Plaintiffs upon further discovery will determine whether additional claims
are supported by the evidence gathered and will at that time seek to amend its complaint to
allege further claims and injury against the defendants, including DOR. Without paragraph
20, DOR will attempt to argue that any discovery upon DOR is outside of the scope of the
Page 5 of 8complaint and that it is a nominal party.
11. Lastly, Plaintiffs have requested that this court determine that Plaintiffs are the
prevailing party. Once DOR is not a nominal party, having participated in the conduct that
injured Plaintiffs, Plaintiffs may seek attorney’s fees pursuant to the procedures laid down
under Fla. Stat. § 57.111. As such, relief is sought against all parties and the allegations at
paragraph 19 and 20 are sufficient for that purpose.
The jury trial demand is proper because the instant case involved
constitutional violations and a “Tax Lien” which has been paid under
protest for which Plaintiffs seek a refund
12. DOR relies on Section 3 Prop. Corp. v. Robbins, 682 So. 2d 596, 596-97 (Fla. 1998) and
argues that Plaintiffs have no constitutional right to a jury trial in a tax assessment cases.
DOR’s arguments are misplaced. The instant case does not deal with a “tax assessment”, but,
rather a “tax lien” which amounts to a taking of property thus raising the constitutional and
statutory violations alleged in Plaintiffs’ proposed Second Amended Complaint. While
Section 3 Prop dealt with ad valorem tax assessment, this is not synonymous with the
retroactive tax lien in the instant case. The Court in Miles v. Parrish, 199 So. 3d 1046 (Fla.
Ath DCA 2016) clarified and distinguished assessments from a retroactive tax lien stating,
Section 194.171(2), Fla. Stat., by its clear and unambiguous terms, applies only
to actions contesting “a tax assessment” and it requires such actions to be filed
within 60 days after the assessment is certified for collection under §
193.122(2), Fla. Stat. A tax lien is not a tax assessment, and it is not
certified for collection under § 193.122(2).
In distinguishing between a tax assessment and a retroactive tax lien, the Court in Miles
construed Ward v. Brown, 894 So. 2d 811, 812 (Fla. 2004), stating
Although Ward held that the 60-day period in § 194.171(2), Fla. Stat. applied
broadly to taxpayers’ actions challenging the assessment of taxes against their
property regardless of the legal basis of the challenge, there is no support in
Ward for the proposition that § 194.171(2) should be construed to apply to
actions challenging tax liens.
Miles, 199 So. 3d 1046, n. 9.; See also Genesis Ministries, Inc. v. Brown, 186 So. 3d 1074 (Fla.
Page 6 of 8Ist DCA 2016) (“Section 194.171(2), by its clear and unambiguous terms, applies only to
actions contesting ‘a tax assessment []. A tax lien is not a tax assessment’)
13.Next, since the retroactive tax liens are not assessment under Florida law, whether
Plaintiffs are entitled to a jury trial turns on whether the tax lien constitutes a taking of
property warranting the constitutional guaranty of a jury trial. See Department of Law
Enforcement v. Real Property, 588 So. 2d 957, 967, n. 17 (Fla. 1991) (The ultimate issue of
forfeiture must be decided by jury trial unless claimants waive that right. Fla. Const. art. I,
§ 22. That substantive right is also subsumed within Fla. Const. art. I, § 9.); Dep't of Rev. v.
prig. House, 644 So. 2d 498 (Fla. 1994) (“The common law right to a jury trial in tax cases
attached after the taxpayer paid the tax or had goods or chattel seized by the tax collector.
Both of these methods caused the taxpayer to “give up something,” i.e., the taxpayer was
deprived of an asset.”). In the instant case, Defendants recorded a retroactive tax lien against.
Plaintiffs’ property and Plaintiffs have paid the tax and are seeking a refund thereof. See
also Crist v. Fla, Ass'n of Criminal Def. Lawyers, Inc., 978 So. 2d 184, 189 (Fla. 2008)(the
determination of a statute's constitutionality, it is a question of law, subject to de novo
review.) This is so even where the issue involves a retroactive tax lien. See Haddock v.
Carmody, 1 So. 3d 1188, 1135, n. 1 (Fla. 1st DCA 2009)
Wherefore, the Plaintiffs respectfully requests that this Honorable Court enter an
order Granting the Motion to Amend and other relief as set forth in the Motion.
Page 7 of 8Respectfully 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 e-mail to
Timothy Dennis at Timothy. Dennis@myfloridalegal.com, Jon.Annette@myfloridalegal.com,
Rebecca. Padgett@myfloridalegal.com; Michael Mastrucci, mastrucc@miamidade.gov;
emily@miamidade.gov; and the Florida Attorney General
oag.civil.eservice@myfloridalegal.com; this 4 day of February, 2019.
André A, Gibson
Attorney for Plaintiffs
Page 8 of 8EXHIBIT A
45 NE 167™ STREET, NORTH MIAMI BEACH, FL 33162
TELEPHONE: 305-652-4900 || TELEFAX: 305-808-3495
AAGibson@Gibsontaxlaw.comAndré A Gibson
From: Clifton Cox
Sent: Thursday, July 20, 2017 2:54 PM
To: AAGibson@Gibsontaxlaw.com
Cc: Timothy Dennis
Subject: Re: Matter Involving DOR
Andre,
Thanks for the e-mail. | am forwarding your e-mail to my my bureau chief, Timothy Dennis, who is much more
knowledgeable about that area.
Respectfully,
Clifton
J. Clifton Cox
Special Counsel
Office of the Florida Attorney General
Revenue Litigation Bureau
Board Certified Specialist (Taxation)
(850)414.3780
Clifton.Cox@myfloridalegal.com
André A Gibson ---07/20/2017 01:57:28 PM---Clifton,
Frome André A Gibson
2 lifton Cox™
Rete: 07/20/2017 01:57 PM
& Matter Involving DOR
Clifton,
am currently addressing a matter with a local property appraiser which on the facts should be resolved administratively. They have
retroactively revoked my client’s exemption for several years whereas it should be for one year where they were out of the country
and rented the property. Despite having provided them with documentation to disprove the assumptions, there seems to be a
resistance to changing their minds. | am nearing the point where | it may be unavoidable to file a Declaratory action thereby
involving the state as a necessary party. We know where this would lead... Before | proceed down that path, would this be a matter
on which your office may be entering and would you prefer that we discuss this matter before | proceed down that path?
AndréNotice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s)
identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is
not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or
other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. If you are not an addressee and have received
this e-mail communication in error, please advise the sender of that circumstance either by reply e-mail or by telephone at (305) 652-4900, immediately delete this
e-mail communication from any computer and destroy all physical copies of same.
Notice Under U.S. Treasury Department Circular 230: To the extent that this e-mail communication and the attachment(s) hereto, if any, may contain written
advice concerning or relating to a Federal (U.S.) tax issue, United States Treasury Department Regulations (Circular 230) require that we (and we do hereby)
advise and disclose to you that, unless we expressly state otherwise in writing, such tax advice is not written or intended to be used, and cannot be used by you
(the addressee), or other person(s), for purposes of (1) avoiding penalties imposed under the United States Internal Revenue Code or (2) promoting, marketing or
recommending to any other person(s) the (or any of the) transaction(s) or matter(s) addressed, discussed or referenced herein.
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Filing # 84331744 E-Filed 02/04/2019 08:11:13 AM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA 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. / PLAINTIFFS’ RESPONSE TO DEFENDANT DEPARTMENT OF REVENUE’S OBJECTION TO PLAINTIFFS’ MOTION FOR LEAVE TO AMEND COMPLAINT Plaintiffs, Raul Mejia and Virginia Lopez, (hereinafter, “Plaintiffs”) by and through their undersigned counsel, files this Response to Defendant, Department of Revenue (“DOR”) Objection to Plaintiff's Motion to Amend the Complaint and state: 1. DOR objects to Plaintiffs’ proposed Second Amended Complaint on the basis that paragraph 20 thereof, fails to state a cause of action against the DOR. Motion at 4 4. Additionally, DOR cites to Trianon Park Condo. Ass’n, Inc. v. City of Hialeah, 468 So. 2d 912, 914-15 (1985), for the proposition that “there has never been a common law duty to individual citizens for the enforcement of police power functions,” and argues that the DOR’s authority and control over the Property Appraiser are planning level, discretionary policy decisions for which DOR owes no specific duty to Plaintiffs and in such acts, it is protected by sovereign immunity. Motion at § 5. We would expect this argument from an agent of King George, reincarnated, but not from an agent of our government charged with upholding the rights of citizens under our constitutional system. DOR misstates the law, the nature of its relationship with the Property Appraiser, and the underlying issues in this case. Page 1 of 8Sovereign immunity does not bar actions against the state involving violations of constitutional or statutory rights. 2. First, the court in Trianon Park Condo. Ass’n, Inc., 468 So. 2d at, 918, n. 5 held, under the constitutional doctrine of separation of powers, the judicial branch must not interfere with the discretionary functions of the legislative or executive branches of government absent a violation of constitutional or statutory rights. Thus, even assuming that the acts were planning level functions, there is no immunity where constitutional or statutory violations are at issue. As such, DOR misstates the case by omitting that Plaintiffs seek redress for the statutory and constitutional violation of Plaintiffs’ rights to their constitutionally protected homestead where the Property Appraiser, without factual basis, retroactively revoked Plaintiffs’ homestead and senior exemptions and imposed a retroactive tax lien without due process of law. 3. Indeed, the Court in Trianon Park addressed the limits of sovereign immunity and articulated the test for determining the line of demarcation between discretionary and other executive or administrative processes, specifically: (1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective? (2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective? (3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision? In applying this test to a particular set of circumstances, if all the questions can be answered in the affirmative, then the governmental conduct is discretionary and “nontortious.” If one or more questions call for a negative answer, then further inquiry is necessary, depending upon the facts and circumstances involved. Id. at 918-919. While the foregoing test applies to common law causes of action, on the facts of this case, each test question is resoundingly answered in the negative, because the acts involves a statutory and constitutional violation. Page 2 of 84. The DOR through its’ own bulletin admits, “DOR oversees Appraiser’s compliance with constitutional and statutory requirements for property [] exemptions.” Complaint at 4 19 citing Exhibit J. This is neither the exercise of “planning level functions,” nor “police power functions” as DOR argues. The bulletin defines the DOR’s constitutional duty to ensure the property appraiser protects the Plaintiffs’ private constitutional rights. DOR has no discretion whether to comply with the Florida and Federal constitutions. 5. DOR has not shown how Plaintiffs’ claims, based on constitutional violations, are discretionary policy decisions of the DOR. Indeed, even where the actions of the DOR are discretionary, where the DOR’s acts violate a statute or the constitution there is no sovereign immunity. See Trianon Park Condo. Ass’n, Inc., 468 So. 2d at, 918 (“The judicial branch has no authority to interfere with the conduct of those functions unless they violate _a constitutional or statutory provision.”) In the instant case, the Defendants have violated Plaintiffs’ constitutional rights, hence sovereign immunity does not apply. 6. In State v. Leone, 118 So.2d 781, 784 (Fla. 1960), the Florida Supreme Court articulated the limits of police power when applied to individual rights stating, Police power may be used only against those individual rights which are reasonably related to the accomplishment of the desired end which will serve the public interest. This means that the interference with, or sacrifice of the private rights, must be necessary, or essential to the reasonable accomplishment of the desired goal. Such interference or sacrifice of private rights can never be justified nor sanctioned merely to make it more convenient or easier for the state to achieve the desired end. If there is a choice of ways in which government can reasonably attain a valid goal necessary to the public interest, it must elect that course which will infringe the least on the rights of the individual. Id. In the instant case, the issue is not an overt act that violate the Plaintiffs’ individual constitutional rights, but refusal to act to protect their rights. Since DOR failed to comply with its own mandate to protect Plaintiffs’ private rights, DOR cannot demonstrate was justified in refusing to act or was necessary, or essential to the reasonable accomplishment. Page 3 of 8of the desired goal necessary to the public interest. The Fourteenth Amendment to the Constitution of the United States forbids the States to make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, or deprive any person of life, liberty, or property without due process of law, or deny to any person within its jurisdiction the equal protection of the laws. See U.S. Const. amend. 14, § 1; See also Fla. Const. art. I, § 9. Plaintiffs real property at issue in this action, and the homestead exemption are private property rights. See Goss v. Lopez, 419 U.S. 565, 572, 95S. Ct. 729, 42 L. Ed. 2d 725 (1975) (Protected interests in property are [] created, and their dimensions defined by, an independent source “such as state statutes or rules entitling the citizen to certain benefits.”); Moser v. Barron Chase Secies., Inc., 783 So. 2d 281, 236, n. 5 (Fla. 2001)(The notion of a property interest encompasses a variety of valuable interests that go well beyond the traditional view of property.); Metro. Dade County v. Sokolowski, 489 So. 2d 982, 934 (Fla. 3d DCA 1983) (“A property interest may be created by statute, ordinance or contract, as well as by policies and practices [] which supports claims of entitlement.) Even if this case involved purely common law causes of actions, the facts and circumstances tests of Trianon Park Condo. Ass’n, Inc. precludes dismissal 7. Significantly, the test in Trianon Park Condo. Ass'n, Inc., 468 So. 2d at, 918., is a facts and circumstances test, which cannot be resolved on a motion to dismiss. See Raney v. Jimmie Diesel Corp., 362 So. 2d 997, 998 (Fla. 8d DCA 1978) (“The function of a motion to dismiss a complaint is to raise as a question of law the sufficiency of the facts alleged to state a cause of action. A court is not permitted to speculate as to whether a plaintiff will be able to prove the allegations, rather a court is required to accept all well pleaded allegations contained in the complaint as true.”) The motion to dismiss is improper, because there are issues of material fact as to whether DOR is exercising pure planning level functions of purely governmental functions, and whether there are constitutional and statutory violations. Page 4 of 8‘The allegations of the Complaint are sufficient to make DOR a material party for discovery, additional causes of actions, and for attorney’s fees under Fla. Stat. § 57.111 8. DOR’s defense to original complaint is that DOR is a nominal party to the action and that no relief is sought against the DOR. DOR’s attack on the Plaintiffs’ Second Amended Complaint is an attempt to keep DOR as a nominal party. This, however, is an affirmative defense and Plaintiffs are not required to plead their claim in anticipation of DOR’s affirmative defenses. See Johnson v. Southern Bell Telephone and Telegraph Co., 169 So.2d 36, 37 (Fla. 83d DCA 1964) (It [] is only necessary for the complaint to state facts sufficient to indicate that a cause of action exists and not to anticipate affirmative defenses.) The allegations at paragraphs 19 and 20 are sufficient to make DOR a material party. 9. First, these allegations are sufficient to enable Plaintiffs to conduct discovery as to the extent of DOR’s failure to perform its constitutional duties to ascertain the basis for stating a proper cause of action in the case. Indeed, on July 20, 2017, over 8 months prior to the commencement of this action, the undersigned counsel contacted the Florida Attorney General's Office, as counsel for the DOR, to inquire into whether the DOR will intervene to address the constitutional issues alleged in the complaint, so as to avoid this suit altogether. Exhibit A at 1 attached hereto. The matter was referred to Mr. Timothy Dennis who is DOR’s counsel in the instant case. Mr. Dennis ignored the request to intervene and resolve the issues. Exhibit A at 1 attached hereto. As such, DOR had actual knowledge of the violations and refused to take any action. Plaintiffs allegations in paragraph 20 is based on a direct and specific failure to perform its constitutional duties. 10.Second, Plaintiffs upon further discovery will determine whether additional claims are supported by the evidence gathered and will at that time seek to amend its complaint to allege further claims and injury against the defendants, including DOR. Without paragraph 20, DOR will attempt to argue that any discovery upon DOR is outside of the scope of the Page 5 of 8complaint and that it is a nominal party. 11. Lastly, Plaintiffs have requested that this court determine that Plaintiffs are the prevailing party. Once DOR is not a nominal party, having participated in the conduct that injured Plaintiffs, Plaintiffs may seek attorney’s fees pursuant to the procedures laid down under Fla. Stat. § 57.111. As such, relief is sought against all parties and the allegations at paragraph 19 and 20 are sufficient for that purpose. The jury trial demand is proper because the instant case involved constitutional violations and a “Tax Lien” which has been paid under protest for which Plaintiffs seek a refund 12. DOR relies on Section 3 Prop. Corp. v. Robbins, 682 So. 2d 596, 596-97 (Fla. 1998) and argues that Plaintiffs have no constitutional right to a jury trial in a tax assessment cases. DOR’s arguments are misplaced. The instant case does not deal with a “tax assessment”, but, rather a “tax lien” which amounts to a taking of property thus raising the constitutional and statutory violations alleged in Plaintiffs’ proposed Second Amended Complaint. While Section 3 Prop dealt with ad valorem tax assessment, this is not synonymous with the retroactive tax lien in the instant case. The Court in Miles v. Parrish, 199 So. 3d 1046 (Fla. Ath DCA 2016) clarified and distinguished assessments from a retroactive tax lien stating, Section 194.171(2), Fla. Stat., by its clear and unambiguous terms, applies only to actions contesting “a tax assessment” and it requires such actions to be filed within 60 days after the assessment is certified for collection under § 193.122(2), Fla. Stat. A tax lien is not a tax assessment, and it is not certified for collection under § 193.122(2). In distinguishing between a tax assessment and a retroactive tax lien, the Court in Miles construed Ward v. Brown, 894 So. 2d 811, 812 (Fla. 2004), stating Although Ward held that the 60-day period in § 194.171(2), Fla. Stat. applied broadly to taxpayers’ actions challenging the assessment of taxes against their property regardless of the legal basis of the challenge, there is no support in Ward for the proposition that § 194.171(2) should be construed to apply to actions challenging tax liens. Miles, 199 So. 3d 1046, n. 9.; See also Genesis Ministries, Inc. v. Brown, 186 So. 3d 1074 (Fla. Page 6 of 8Ist DCA 2016) (“Section 194.171(2), by its clear and unambiguous terms, applies only to actions contesting ‘a tax assessment []. A tax lien is not a tax assessment’) 13.Next, since the retroactive tax liens are not assessment under Florida law, whether Plaintiffs are entitled to a jury trial turns on whether the tax lien constitutes a taking of property warranting the constitutional guaranty of a jury trial. See Department of Law Enforcement v. Real Property, 588 So. 2d 957, 967, n. 17 (Fla. 1991) (The ultimate issue of forfeiture must be decided by jury trial unless claimants waive that right. Fla. Const. art. I, § 22. That substantive right is also subsumed within Fla. Const. art. I, § 9.); Dep't of Rev. v. prig. House, 644 So. 2d 498 (Fla. 1994) (“The common law right to a jury trial in tax cases attached after the taxpayer paid the tax or had goods or chattel seized by the tax collector. Both of these methods caused the taxpayer to “give up something,” i.e., the taxpayer was deprived of an asset.”). In the instant case, Defendants recorded a retroactive tax lien against. Plaintiffs’ property and Plaintiffs have paid the tax and are seeking a refund thereof. See also Crist v. Fla, Ass'n of Criminal Def. Lawyers, Inc., 978 So. 2d 184, 189 (Fla. 2008)(the determination of a statute's constitutionality, it is a question of law, subject to de novo review.) This is so even where the issue involves a retroactive tax lien. See Haddock v. Carmody, 1 So. 3d 1188, 1135, n. 1 (Fla. 1st DCA 2009) Wherefore, the Plaintiffs respectfully requests that this Honorable Court enter an order Granting the Motion to Amend and other relief as set forth in the Motion. Page 7 of 8Respectfully 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 e-mail to Timothy Dennis at Timothy. Dennis@myfloridalegal.com, Jon.Annette@myfloridalegal.com, Rebecca. Padgett@myfloridalegal.com; Michael Mastrucci, mastrucc@miamidade.gov; emily@miamidade.gov; and the Florida Attorney General oag.civil.eservice@myfloridalegal.com; this 4 day of February, 2019. André A, Gibson Attorney for Plaintiffs Page 8 of 8EXHIBIT A 45 NE 167™ STREET, NORTH MIAMI BEACH, FL 33162 TELEPHONE: 305-652-4900 || TELEFAX: 305-808-3495 AAGibson@Gibsontaxlaw.comAndré A Gibson From: Clifton Cox Sent: Thursday, July 20, 2017 2:54 PM To: AAGibson@Gibsontaxlaw.com Cc: Timothy Dennis Subject: Re: Matter Involving DOR Andre, Thanks for the e-mail. | am forwarding your e-mail to my my bureau chief, Timothy Dennis, who is much more knowledgeable about that area. Respectfully, Clifton J. Clifton Cox Special Counsel Office of the Florida Attorney General Revenue Litigation Bureau Board Certified Specialist (Taxation) (850)414.3780 Clifton.Cox@myfloridalegal.com André A Gibson ---07/20/2017 01:57:28 PM---Clifton, Frome André A Gibson 2 lifton Cox™ Rete: 07/20/2017 01:57 PM & Matter Involving DOR Clifton, am currently addressing a matter with a local property appraiser which on the facts should be resolved administratively. They have retroactively revoked my client’s exemption for several years whereas it should be for one year where they were out of the country and rented the property. Despite having provided them with documentation to disprove the assumptions, there seems to be a resistance to changing their minds. | am nearing the point where | it may be unavoidable to file a Declaratory action thereby involving the state as a necessary party. We know where this would lead... Before | proceed down that path, would this be a matter on which your office may be entering and would you prefer that we discuss this matter before | proceed down that path? AndréNotice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. 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