County, Florida, and LEON M. of the · County, Florida, and LEON M. BIEGALSKI in his officiat...

*{}Filing # $A0%77 E-Filed l0/18/20[ 7 03:21 :3 I pM

ALBERTO NOUEL MORIT

Plaintiff,v.

!N THE CIRCU]T COURT FOR THE 11TH

JUDICIAL CIRCUIT IN AND FOR MIAMI-EADE-COUNTY; FLORIDA=--- ...-

CIRCUIT CIVlL DIVISIONCASE NO.:

PEDRO J. GARCIA, in his officialcapacityas Property Appraiser dt Miami-DadeCounty, Florida, and LEON M.BIEGALSKI in his officiat fapacity as theExecutive Director of the FloridaDepartment of Revenue

Defendants.

COMPLAINT

Plaintiff, ALBERTO lOr=L ,* "* through undersigned counsel, sues

the Defendants, PEDRO J, GARCIA in his official capacity as Property Appraiser for

Miami-Dade County, Floridf ("Appraise/'), and LEON M. BIEGALSKI in his official

capacity as the Executive Difector of the Florida Department of Revenue, and states:

Parties and Jurisdiction

1. This is an action for declaratory relief and to quiet title relating to the

Appraiser's findings that Plaintiff is not entitled to a Homestead Exemption under Chapter

196, Florida Statutes, and the subsequent recording of two tiens upon real properly.

2. This is also an action for declaratory judgment as to whether S 196.161 of

the Florida Statutes is uncorfstitutional for failure to provide procedural due process as

required by Article l, $ I of tnf Ftorloa Constitution and the Fourteenth Amendment to the

United States Constitution.

3' Plaintiff is an individual over the age of 18, who resides in Miami-Dade

County, Florida, and is otherwise suijuris.

page?ot 12

4. Appraiser lavuflltV holds the office of Property Appraiser of Miami-Dade

County, Ftorida, TheApprai$, i.-.t"1ggf,.,with.the responsibility of discharging the duties

of said otfice.

5. LEON nr. are{nLSKl is the Executive Director of the Ftorida Department

of Revenue and a required larty for Count lll below under Fla. Stat. S 194.181(5).

6. The real properlty that is subject to this action is located at 10 Venetian Way,

Unit 1105, Miami Beach, Florida,33139-8803 (the "property"), and is more particularly

described as follows:

Condominium Unit No. 110S, of the Grand Venetian, aCondominium, accordinq to the Declaration thereof. as recordecl incondominium, according to the Declaration thereof, as recorded inofficial Recordp Book 20103, at Page s448, of the pubric Recordsof Miami-Dade County, Florida.

7. Venue is propei in Miami-Dade County, Florida because the Propertywhich

is the subject matter of this aption is located in Miami-Dade County, Florida; the tax liens

(as defined below) *"r" ,".]rded in Miami-Dade County, Florida; and Appraiser resides

and holds office in Miami-Dafe CountV, Florida.

8. This Court has jurisdiction pursuant to Fla. Stat. SS 194.171, 86.011, and

86.021.

Background

9. On May 22,20q2, Plaintiff took tegal and equitable title to the Property as a

joint tenant with right of surviriorship by way of a Quit Claim Deed. A true and correct copy

of the Quit Claim Deed is attdched hereto as Exhibit A.

appropriate application with the Miami-Dade County Property Appraiser's Office.

11. The homestead application was granted.

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12. Since 2003, Plaintiff has enjoyed the protection of the homestead

e_xemption and has permanqntly resided in the property.

fnJ Oenial of Ptaintiffs Due process

13. On March l, Zll7, Appraiser sent to Plaintiff a Notice of lntent to Lien the

Property pursuant to $ 196.161 Fla. Stat ("Notice of lntent"). The Notice of lntent stated

that, after a review of ad valorem property tax benefits for the Property, Appraiser

determined that Plaintiff is not entitled to the Homestead Exemption. A true and correct

copy of the Notice of lntent is attached hereto as Exhibit B.

14. The Notice of lntent gave no other choice to Plaintiff other than paying

$16, 239.91 in back taxes and penalties or having a lien recorded on the Property for the

same amount.

15. The Notice of lntent did not explain the legal or factual basis for the

imposition of back taxes and penalties on the property.

16. On March 24,2017, Plaintiff objected to the determination Appraiser made

in the Notice of Intent. Specifically, Plaintiff explained that, since 2OOZ, he had been using

the Property as his true, permanent, and fixed home and that he never abandoned the

Property. As proof thereof, Plaintiff represented to the Appraiser that he has utility bills,

voter's registration, and a driver's license, among others, all indicating that the property

was Plalntiff's homestead.l

17. Therefore, Plaintiff requested Appraiser to produce documentation

supporting Appraiser's detenfnination about Plaintiff s homestead. A true and correct copy

1. Most, if not all2015 when a PREVIOUS inv

uch documentation, has been provided to the Appraiser instigation was initiated and CLOSED as proof of homestead

was satisfactorily proven.

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"lnvestigator") replied to Plaintiff's correspondence stating that the imposition of back

taxes, penalties, and the retroactive rernovalof the Homestead Exemption was due to the

fact that Plaintiff allegedly rented the Property to CESAR A. OLCESE ("Mr. Olcese,') for

a term of one year from November 1, 2012, to November 1, 2013 (the "Fraudulent

Lease";. z

19. As the proof of the existence of the Fraudulent Lease, the lnvestigator

provided Plaintiff with only the first page of the Fraudutent Lease initialed by Mr.

Olcese, but devoid of Plaintiff's initials or signature. A true and correct copy of the

lnvestigator's response and the lnvestigator's Report containing presumably the first page

of the Fraudulent Lease is attached hereto as Exhibit D.

20. On April 3, 2017, Plaintiff responded to the lnvestigator's allegations

exptaining that the Fraudulent Lease was fraudulent and could not have possibly borne

Plaintiffs signature because he never, orally or in writing, agreed to rent the property.

21. Plaintiff further explained that during the period covered by the Fraudulent

Lease he was personally residing in the Property with his family and that Mr. Olcese,

Plaintiff's former brother in law, was only "couch surfing" in Plaintiffls property for a

short period while relocating to Miami.

22. Accordingly, Pfaintiff demanded Appraiser the production of the entire

Fraudulent Lease carrying ]elaintiffs signature and formally requested a hearing. A

2. The lnvestigatlr represented thatthe Propeilywas being rented for"a rentalrate of $1,550" (presumablf_ a month), yet the Fraudulent LeasL provided by thelnvestigator to Plaintiff has N0 rental rate at all,

true and correct copy of

Exhibit E.

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ntiff's April 3,2017, correspondence is attached hereto as

responded to Plaintiff's reqrfest. ln his correspondence, Appraiser Attorney admitted

that he was in possession {olety of the first page of the Fraudulent Lease, that such

page did not carry Plaintiffls signature or initials, and that he could not obtain a

copy of the remaining pages of the Fraudulent Lease.

24. Regardless the fact that Appraiser's determination was devoid of any

supporting evidence, Appraiser insisted that Appraiser's termination of Plaintiff's

homestead was justified.

25. More importanfry, Appraiser Attorney explained that Plaintiff did not havel

the right to a hearing beforela tax lien on the Property was imposed. A true and correct

copy of the Appraiser Senior,Attorney's correspondence is attached hereto as Exhibit F.

26. Although Appraiser knew that the removal of Plaintiff's homestead was not

supported by any evidence, Appraiser revoked Plaintiffs homestead exemption, imposed

back taxes and penalties on plaintiff, and recorded tax liens on Ptaintiff's Property.

The lmposition of the Lien on the Propefi

27 . On or about April4, 2OlT,Appraiser recorded in the public records of Miami-

Dade County, as well as the chain of title for the Propefi, a Notice of Tax Lien for

Exemptions and Assessmerft Uirit"tions (the "First Lien"), a true and correct copy of

which is attached hereto as Exhibit G.

28. On or about June 2, 20'17, Appraiser recorded in the public records of

Miami-Dade County, as well as the chain of title for the Property, a second Notice of Tax

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Lien for Exemptlons and As$essment Limitations (the "second Lien"), a true and correct

copy of wfrich is a-ttached hdreto as Exhibit H.

and Second Liens are based on the same set of facts.

Specifically, both Liens stat{ tnat Appraiser has discovered that Plaintiff was not tegally

entitled to receive a Homeltead Exemption and/or assessment limitation because of

"RENTAL oF HOMESTEAD"; cite to SS 193.1ss(10), 193.1s8s(10), 193.s01(g), 196

011(9), 196.075(9), 196.161(1), and 196.183, Florida Statutes, to support the entitlement

to record the Lien; and charge a fifty percent (50yo) penalty and fifteen percent (15%)

interest for any year or years within the last ten years in which the taxpayer was not

entitled to" but was granteO, I tax exemption or assessment limitation. See Exhibit G and

Exhibit H.

Plaintiff's use of the lroperty as His True, permanent, and Fixed Horne

30. The terminatiofr of homestead is premised on the alleged abandonment of

the Home by the Plaintiff dul to the alleged rentals. Pursuant S 196.061, Florida Statutes,

"[t]he rental of all or suUstar']rtially atl of a dwelling previously claimed to be homestead

exempt for tax purposes Shall constitute the abandonment of such dwelling as a

homestead."

31. Fla. Stat. S 196.061 states that "the abandonment continues until the

dwelling is physically occupied by the owner."

32' Based on thi[ reasoning, the Florida legislature provided property

appraisers with factors to use in determining the intent of a person claiming a homestead

tax exemption to establish permanent residency in the State of Florida. These factors

include, but are not limited to, an assessment of the address provided on items such as

a recorded sworn statement of domicile, voter registration, driver's license, utility

PageT of 12

statements, vehicular

1e6p15:

33. Finally, "

ation, bank staternents, and tax returns. See Fla Stat.

by the homestead exem

courts have consistently held that the protections afforded

in article X, S 4 [of the Florida Constitution], must be liberally

construed and if there is doubt whether a constitutional right has been waived, a

presumption should be a against the waiver-"

34. Contrary to th$ Appraiser's information and apparent belief, Plaintiff never

rented out the Property; , consistent with the presumption of non-waiver, plaintiff

has never abandoned the P{operty as a homestead.

35. Plaintiff n". "{*.ys

resided in the Property since he initially took tile in

2002.

36. Plaintiff owns !o other properties anywhere in the world and has never

abandoned his Property during the four (4) years at issue (or since purchasing property

in2002\.

37, Moreover, Plai tiff had already provided utility bills, voter's registration, and

a driver's license, among ot ers, all indicating that his true, permanent, and fixed home

is at the Property,

sole shareholder of the undqrsigned law firm, tocated in Miami-Dade County, Florida.

39. ln light of the t [tr"r circumstances surrounding this case, Ptaintiff contends

that he never rented or abandoned his Property or in any otherway waived his homestead

exemption. Accordingly, the First and Second Lien and the debt Appraiser claims are

invalid.

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tf contends the constitutionality of S 196.161 of the Florida

Statutes.eg it e=lqws Appr{is=el tg-deprive a taxpayer of a constitutionally protected

property interest without an opportunity to be heard. Additionally, the current statutory

scheme exposes Appraiser lo a high risk of erroneous and ill-advised decisions.

41. Plaintiff has

action, he must pay them a

ined the undersigned law firm to represent hirn in this

fee for their services and is entitled to recover his

attorneys'fees and costs on this action.

42. All conditions precedent to bringing this action have occurred, been waived,

satisfied, discharged, or excused.

COUNT I

acrlor.r FoR DEcLARAToRy RELTEFl

43. Plaintiff reinco{porates and re-alleges paragraphs 1 through 42 above, as

though fully set herein.

)

44. Appraiser has fecorded the First and Second Lien against the Property and

contends that it is owed the total amount oI $24,267.15 pursuant to $$ 193.155(10), 193

1555(10), 193 501(9), 196.0i1(9), 196.075(9), 196.161(1), and 196.183, Florida Statutes.

45. Plaintiff disputds that Appraiser was entitled to record the Liens and is owed

the sums claimed because flaintiff has never rented out the Property to constitute an

abandonment of the Homesfeao exemption and/or Limitation Excrusion.

46. ln light of the fpregoing, the parties have a bona fide actual, present, and

practical need for a declarati[n ".

to the above-listed disputed matters.

47. The legal rightb and obligations of the Plaintiff are directly and materially

impacted by Appraiser's having recorded the First and Second Lien and demanded

payment of the above sum, which Plaintiff disputes and a present controversy exists

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regarding same.

., .-4-8..., -,,Plaintiff

and {nnraiser have. actual, present, adverse,.and .antagonistic

interests in both law and f""f, ,"grrding the controversies identified herein.

49. The pafties' ri$hts, immunities, privileges, and duties are dependent upon a

declaration of whether the First and Second Lien are valid and whether Plaintiff owed

Appraiser the disputed sums.

WHEREFORE, Plainliff, ALBERTO NOUEL MORIS, respectfulty requests that the

Court exercise its equitable fiurisdiction and enter a judgment (1) declaring the First and

Second Lien invalid and unlhwful, (2) declaring that Plaintiff does not owe Appraiser the

disputed sums, (3) rei the Homestead exemption on the Property, and (4) granting

s this Court deems just and proper.

COUNT IIACTION TO QUIET TITLE

such other and further relief

50. Plaintiff rein


and re-alleges paragraphs 1 through 42 above, as

51. Plaintiff is the ourrent legal and beneficial title holder of the above'described

Property.

52. As set forth herein, Appraiser has recorded the First and Second Lien

against the Property, and the First and Second Lien appear in the chain of title to the

Propefi.

53. Therefore, Rp/raiser clalms an estate or interest in the Property adverse to

Plaintiff.

54. Appraiser's claims and liens are without any right, and Appraiser should

have no estate, right, title, lien or interest in or to the Property, or any part of the Property.

WHEREFORE, Plai

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ALBERTO NOUEL MORIS, respectFully requests this

Court to enter judgment:

(a) declaring that has no estate, right, title, lien, or interest in or to the

Property and

name against

Defendant;

dissolving the

title to the Property be quieted solely in the plaintiff's

all claims of Defendant and all persons claiming under

First and Second Lien or othenruise correcting the public

records or of title to the Properg so as to make it clear that the First

(b)

(c)

and Second

permanently

Second Lien

Second Lien u

are of no force or effect;

ining Appraiser from seeking to enforce the

from accepting payment as satisfaction of the

the sale of the Property; and

First and

First and

for such and further relief as this Court deems just and proper,

t limited to, an award of prevailing party attorney's fees andincluding but

costs.

couNT ilACTION FOR DECLARATORY JUDGMENT THAT S 196.16{ FLA. STAT. IS

UNCONSTITUTIONAL

55. Plaintitf reincofporates and re-alleges paragraphs 1 through 42 above, as


56. The imposition of a lien on Plaintiff's Properly constitutes a deprivation of a

constitutio n a I ly protected prop e rty interest.

57. Section 196.161 of the Florida Statutes is unconstitutional on its face under

Afticle l, S I of the Florida Constitution and the Fourteenth Amendment to the United

States Constitution because it fails to provide Florida's taxpayers with procedural due

(d)

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process.

because it authorizes App{aiser to make a unilateral determination of a taxpayer's

homestead status for the nrpriorc ten (10) years and to place a lien on the taxpayer's

property without according the taxpayer an opportunity to be heard before such

revocation and lien are imP{sed. ln other words, S 196.161 of the Florida Statutes does

not provide for a pre-d"Rrir"[ion or post-deprivation hearing to an affected taxpayer.

59. Moreover, tne]current statutory scheme under S 196.161 of the Florida

Statutes exposes Appraiser to a high rlsk of erroneous decisions because it does not

allow a taxpayer to contest Appraiser's unilateral revocation of the homestead exemption

before the imposition of a lieh.

60. Accordingly, $ 196.161 of the Florida Statutes violates the requirements of

procedural due process unper Art. l, $ 9, of the Florida Constitution and the Fifth

Amendment, made applicable to the States by the Fourteenth Amendment of the United

States Constitution.

61. Based on the foregoing, an immediate, substantial, and actual justiciable

controversy exists between Plaintiff and Defendants that requires resolution by this

Honorable Court.

62. Plaintiff is in doubt as to his rights, liabilities, and obligations as to whether

S 196,161 of the Florida St{tutes is unconstitutional on its face and is entitled to have

such doubt removed.

WHEREFORE, Plainfiff respectfully requests this Court to enter a judgment

declaring S 196.161 of the Florida Statutes unconstitutional, void, and of no force and

effect, awarding Plaintiff

pursuant lo 4_2 U,S,C, S 1

and proper.

DATED: October 18,

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nable attorney's fees and costs incurred in this action

8, and such other and.further: relief as.this.Court deems just

Respectfully submitted,

MORIS & ASSOCIATESCounse/ for Plaintiff3650 NW 82nd Avenue, Suite 4O1Doral, Florida 33166Telephone No: (305) 559-1600Facsimile No: (305) 229-2272Email: [email protected]

By:. /s/ Gianluca Darena,.GIACOMO BOSSAFlorida Bar No: 97817GIANLUCA DARENAFlorida Bar No. :126143

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