STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

Transcription

1 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS Cherane Pefley : : Petitioner, : : v. : : (1) Florida Department of Revenue, : : (2) Palm Beach County, Florida, : : Respondents : / New Filing FIRST AMENDED RULE CHALLENGE Pursuant to (2), Fla. Stat., Petitioner, Cherane Pefley, files this Petition to Invalidate a Proposed Rule or Rule against land owners in Palm Beach County who raise exotic and rare birds by arbitrarily removing their lands from the Agricultural classification. I. PRELIMINARY STATEMENT 1. On July 25, 2013, this rule challenge was originally brought under (4) and respectfully rejected by Deputy Chief Judge David M. Maloney. Describing his objections: The Palm Beach County Property Appraiser s office and the Palm Beach County Agricultural Department were ruled non-agencies under Section (1), Fla. Stat., and the letter from the Property Appraiser arbitrarily removing the agricultural classification from lands used to raise exotic and rare birds was ruled a non-agency statement under (4). 2. In light of the rejection of that action, Petitioner has amended, covering all the bases. A. This petition is grounded in 20.04(1), Fla. Stat., which defines the State

2 of Florida, Department of Revenue (hereinafter DOR ) as an agency. B (7)(a), Fla. Stat., states: Unless specifically authorized by law, the head of a department may not reallocate duties and functions specifically assigned by law to a specific unit of the department... C , Fla. Stat., gives DOR the oversight responsibility for the collection of ad valorem, property taxes. D (3) provides the nexus between DOR and the Palm Beach County Tax Appraiser in cases of: authority: A bona fide controversy exist[ing] between the tax collector and the taxpayer as to the liability of the taxpayer for the payment of the tax claimed to be due... 1 E , Fla. Stat., is the generalized Florida law entitled: Agricultural lands; classification and assessment; mandated eradication or quarantine program. F. Paragraph (1) of , Fla. Stat., delegates to the Appraiser this The property appraiser shall, on an annual basis, classify for assessment purposes all lands within the county as either agricultural or nonagricultural. E Coming back in with two legal theories: 1) cf. Under , Fla. Stat., the Florida Department of Revenue is charged with oversight of ad valorem, property taxes within the State of Florida, while sovereign sub-division, the Palm Beach County Tax 1 The Value Adjustment Board and judicial remedy detailed in the statute is not a limitation on DOAH s power to stop this nefarious practice in limine. Page 2 of 26

3 Appraiser s removal of the agricultural classification, by the logic of elimination, can only be de facto state action, 2 and the only conceivable justification therefor can be a policy rising to rule or proposed rule status 3 ; more proximately, Petitioner mirrors this petition from an earlier case on all fours that passed the scrutiny of the Office of Chief Judge, Robert Cohen as a rule challenge, to wit: Manatee Education Association et al. V. School District of Manatee County, et al., DOAH case number RP. In Manatee, each of the sovereign parties were deemed a person and an agency under the same, procedural law pleaded here. (This pleading has been modelled after Manatee, supra.) 3. Throughout this petition, Petitioner will draw parallels to Manatee, supra.. Petitioner respectfully requests equal protection and equal due process of law. II. JURISDICTION AND VENUE 4. Venue for this action is appropriate in the Division of Administrative Hearings ( DOAH ), pursuant to (1)(c), Fla. Stat. 5. DOAH has jurisdiction over the subject matter of the instant dispute, as provided in , Fla. Stat. III. PARTIES 6. Petitioner resides at Snail Trail, Loxahatchee Groves, Florida Petitioner s telephone number is (561) Since 1989, Petitioner has propagated rare, exotic birds on her property, which has formed the basis of a long standing and well established 2 Admittedly, there is another possibility that the Appraiser is operating ultra vires; however for administrative purposes, exceeding delegated legislative authority is customary. 3 If the Appraiser s removal of the Agricultural classification cannot be attacked as a rule or proposed rule, the purpose of the APA would be circumvented. Page 3 of 26

4 agricultural, property classification. Petitioner moved to her present, above-stated location in 2007 and, at that time, applied for the aforesaid agricultural classification, tax use. 7. In consequence, Petitioner s premises were inspected by the Palm Beach County Department of Agriculture and she was approved for the agricultural classification, tax use in Said approval has been automatically renewed every year until June, 2013, when the Palm Beach County Tax Appraiser arbitrarily noticed Petitioner with the removal of her agricultural, tax use. Please see Exhibit A. 8. Oversight of the subject agricultural classification is conferred on the Florida Department of Revenue by , Fla. Stat. 9. A review of (5)(d-f) conclusively establishes the state/county nexus that, in turn, brings this rule challenge into the necessary ambit of definitions for person and agency: A. (d) If a payment has been made in error by a taxpayer because of an error in the tax notice sent to the taxpayer, refund must be made directly by the tax collector and does not require approval from the department. At the request of the taxpayer, the amount paid in error may be applied by the tax collector to the taxes for which the taxpayer is liable. (e) Claims for refunds must be made pursuant to the rules of the department. A refund may not be granted unless a claim for the refund is made within 4 years after January 1 of the tax year for which the taxes were paid. (f) Upon receipt of the department s written denial of a refund, the tax collector shall issue the denial in writing to the taxpayer. Page 4 of 26

5 IV. APPLIED RULE MAKING GENERALLY 10. This petition asks that Exhibit A (removal of the agricultural classification for a class of people raising exotic and rare birds in Palm Beach County) be viewed as a proposed rule or a rule, because no other authority is cited in the notice for such departure from the longstanding an contemporaneous interpretation of Florida law. A. Whether this departure is a letter from the Property Appraiser or an ad hoc declaration in a newspaper, all the way to a proposed rule or a promulgated rule makes no difference. An assessment is an official act and when done by a sovereign sub-division without authority, it amounts to state action, reachable on a State level via DOAH. B. The Palm Beach County Tax Assessor is asserting this removal from the agricultural classification as if it has DOR blessing, when we know it doesn t. 11. In Bureau of Credit Admin., Inc., v. Department of Business Regulation, Case No RP (Fla.Div.Admin.Hrgs. 1981), 1981 WL (citing In Florida Beverage Corporation, Inc., et. al. v. Wynne, 306 So.2d 200, Fla. 1st DCA, 1975, DOAH embraced this language: It is well established in Florida that the Legislature, having enacted a Statute complete in itself which declares a legislative policy or standard and operates to limit the power delegated, may authorize an administrative agency to prescribe rules and regulations for its administration. It is equally well settled that the Legislature may expressly authorize designated public officials to provide rules and regulations for the complete operation and enforcement of the law or laws within their express general purposes Where the empowering provision of a statute states simply that an agency may make such rules and regulations as may be necessary to carry out the provisions of this Act, the validity of regulations promulgated thereunder will be sustained so long as they are reasonably related to the purposes of the enabling legislation, and are not arbitrary or capricious. Page 5 of 26

6 12. The Florida Legislative has given its grant of power to the Florida Department of Revenue, pursuant to , Fla. Stat., to review this reversal of a property tax classification exceeding the Appraiser s delelgated power, substantially affecting a class of land owners in Palm Beach County. And it is not reasonably related to the purposes of the enabling legislation, and [it is]... arbitrary or capricious, because of the longstanding, contemporaneous and contary classification throughout the state, as well, suprisingly at the Palm Beach County level 4. See Exhibit B from Michael S. Wheeler, CFE, Agricultural Appraiser II, for the Palm Beach County Property Appraiser: A. Ms. Pefley, Your property is classified as agricultural with the 6790 code which is specifically used for misc. fowl such as exotic birds, ostriches, quail and emus. The 6700 conde on the website is a Department of Revenue code that is a catch-all code (that is what I call it) that includes misc. fowl as well as bee hives and fish farms. We break down that Catch-all code further to reflect the actual agricultural use of the property which in your case is for misc. fowl (6750). The building card for your property showing this 6750 code was ed to you previously. Sincerely, Michael S. Wheeler, CFE, Agricultural Appraiser II, Palm Beach County Property Appraiser, Government Center 5 th Floor, 301 North Olive Avenue, West Palm Beach, Florida 33401, , fax If in the judiciary, the principle of judicial estoppel would defeat the action. Petitioner respectfully alleges administrative estoppel, if there is such a principle, should also defeat the action. 5 No authority is cited for the removal of classification 6750 with the DOR. Page 6 of 26

7 13. The Palm Beach County Tax Appraiser is a sovereign subdivision of the State of Florida, headquartered in Palm Beach, Florida and, in this case, carrying out State of Florida business. A Said Appraiser is therefor a person within the meaning of (14), Fla. Stat., in pertinent part: Stat., as follows: [A]ny unit of government in or outside the state... B. Said Appraiser is also an agency within the meaning of (1), Fla. (c) Each officer and governmental entity in the state having jurisdiction in one county or less than one county, to the extent they are expressly made subject to this act by general or special law or existing judicial decisions. i. See general law , Fla. Stat., which refers to the duality of DOR and the Property Appraiser in issues such as this. ii. See Manatee, supra. C. Inter alia, a DOR organization called The State Bureau of Technical Assistance issued Technical Assistance Advisement 90A 003R (July 25, 1991), 6 inter alia yet corroborative: You maintain that the Federal Deposit Insurance Corporation (hereinafter Agency ) in its corporate or receivership capacity does not have a duty to collect sales tax on the sale of a failed bank's tangible personal property. In support of this conclusion you argue that Section , Florida Statutes, requires only persons to 6 Please see 1991 WL (Fla.Dept.Rev.) Page 7 of 26

8 collect and remit sales tax, and that the Agency is not a person as that term is defined in s (13), F.S.. Your primary point in support of this argument is the fact that this definition specifically includes state agencies, but does not specify federal agencies. We disagree with this argument. Section (13), F.S., defines person as including:... any individual, firm, copartnership, joint adventure, association, corporation, estate, trust, business trust, receiver, syndicate, or other group or combination acting as a unit and also includes any political subdivision, municipality, state agency, bureau, or department and includes the plural as well as the singular number. It is apparent that with this definition the Florida legislature was attempting to include the spectrum of organizational structures. In addition to naming specific state and local political structures, the definition includes any... firm... corporation... or other group or combination acting as a unit. These portions of the definition include the Agency. 14. The Appraiser is responsible for administering the State of Florida, mandated, ad valorem, property tax. In this role, the Appraiser employs a staff The Florida Department of Revenue and The Appraiser collaborate within the meaning of , Fla. Stat. 8 7 In Manatee, supra, the petitioner Manatee Education Association, the Respondents School District of Manatee County and the School Board of Manatee County are each defined as a person within the meaning of (14), Fla. Stat.; and the challenged rule is a local Policy In Manatee, supra, the referenced collaboration is local between the School District of Manatee County and the School Board of Manatee County, each of which is defined as an agency within the meaning of (1), Fla. Stat. They are also defined as a person within the meaning of (14), Fla. Stat. Page 8 of 26

9 A. In light of the longstanding agricultural classification for lands used in raising rare and exotic birds, any departure must be promulgated in rules, as follows: i. Whenever an act of the Legislature is enacted which requires implementation of the act by rules of an agency within the executive branch of state government, such rules shall be drafted and formally proposed as provided in this section within 180 days after the effective date of the act, unless the act provides otherwise (2)b(b) 16. Here we re dealing with an arbitrary, capricious and unlawful withdrawal of the agricultural classification from Petitioner and a class similarly situated, an ideal issue for DOAH resolution. A. DOAH was constituted in 1974 precisely to resolve this kind of issue, where an agency exceeded its authority in promulgating rules which were, at the time, clearly contrary to legislative intent. To combat this from happening again, when the Legislature came back into session, it developed the most, powerful, administrative procedure in the nation when passing Chapter 120 and constituting DOAH to hear cases thereunder. A no-nonsense Division with a rocket docket, DOAH has been so successful and transparent that, through the years, its jurisdiction has been continually enlarged. Among either judicial or nonjudicial venues, DOAH may well be the fastest growing forum of legal resolution in Florida. V. SUBSTANTIAL AFFECTATION 17. Substantial affectation is roughly the administrative term of art for a realm of jurisdiction in the judiciary. This petitioner must establish before DOAH: (1) a real and sufficiently immediate injury in fact; and (2) that the alleged interest is arguably within the zone Page 9 of 26

10 of interest to be protected or regulated. See All Risk Corp. Of Fla. v. State, Dep't of Labor & Employment Sec., 413 So. 2d 1200 (Fla. 1st DCA 1982) Parallel to Manatee, supra, which dealt with policy localized to Manatee County, removing the agricultural classification renders the only writing evidencing this departure a rule or proposed rule within the meaning of (16). 10 Otherwise, the reclassication cannot arise out of thin air. The only writing we have evidencing the cause here is a letter from the Appraiser and therefor the only choices in administrative law are 1) proposed rule or 2) rule. For greater detail, please see Section VII, infra. 19. This draconian, pocket-book issue exceeds the Appraisers delegated authority. 20. More so than in Manatee, supra, the policy is arbitrary and capricious, fails to establish adequate standards for agency determination, and vests unbridled discretion in the Palm Beach County Tax Appraiser beyond its delegated authority. 21. Operating the Heaven on Earth Avian Acre since 1989 and on her Loxahatchee Groves land since 2007, Petitioner is recognized statewide, if not nationally, as a champion of and expert on rare, exotic birds. And her agricultural land is used therefor. A. In fact, Petitioner settled at her present location in justifiable reliance on the agricultural, property, tax classificiation. 22. Petitioner has a real and sufficiently immediate injury, in fact, at present 9 In Manatee, supra, the issue was proposed rules promulgated pursuant to , Fla. Stat., which were said to be vague, arbitrary and capricious, fail to establish adequate standards for agency determination, and vest unbridle discretion in the Board. 10 At Paragraph 19 of the Complaint in Manatee, supra, Petitioner pleads The Policy is a rule within the meaning of Section (16), Fla. Stat., and the rule challenge was approved to proceed by Chief Judge Robert Cohen. Page 10 of 26

11 amounting to over $1,000 loss per year and likely creeping upward with time if Palm Beach County is permitted to fly in the face of state law Petitioner s injury is demonstrably real in dollars, not based on pure speculation or conjecture. See, e.g., Professional Firefighters of Fla., Inc. v. Department of Health & Rehabilitative Servs., 396 So. 2d 1194 (Fla. 1st DCA 1981). 24. The general rule regarding the second zone of interest element of the substantially affected test is that such element is met where a party asserts that a rule implementing a statute encroaches upon an interest protected by a statute or the constitution. Florida Medical Ass'n v. Department of Professional Regulation, 426 So. 2d 1112, 1117 (Fla. 1st DCA 1983). 25. While statutory authority is pleaded in Section XIII, the protected zone of interest need not be found in the enabling statute of the challenged rule itself. Id. Since the crux of [a rule challenge] controversy involves the claim that [the enabling statute] does not authorize the rule, it is obvious that the effect of other statutes must be considered in determining standing. Id. (explaining that standing in rule challenges is different from that in licensing or permitting proceedings). 26. A real and sufficiently immediate injury in fact exists, where the challenged rule or propsed rule, has a direct and immediate effect upon Petitioner s right to earn a living. VI. STANDING 27. Section (1)(a) grants to: 11 Petitioner respectfully avers that slapping taxpayers with an arbitrary tax presents substantially more affectation than the proposed rules in Manatee, supra. Taxation without representation was the cornerstone of the U.S. Revolution and the Declaration of Independence. Page 11 of 26

12 [a]ny substantially affected person standing to challenge the validity of a proposed agency rule on the ground that the proposed rule is an invalid exercise of delegated legislative authority. i. There is a class in Palm Beach County similarly situated who are all losing their agricultural classifications without official authority. 28. Nothing has changed in (1) Petitioner s agricultural use, (2) surrounding urbanization, (3) any vote of the Palm Beach County Commission supporting removal of Petitioner s agricultural classification, 4) any exception on this issue granted the Appraiser by the DOR or 5) any emergency action taken at the state level in connection herewith. A. In fact, if anything, the Palm Beach County Commission has voted to the contrary. 12 VII. POLICY RISING TO RULE OR PROPOSED RULE 29. Attached as Exhibit A is the challenged rule or proposed rule. 13 Dated June 18, 2013, titled Snail Trail, Removal of Agricultural Classification for 2013, the letter written under Palm Beach County authority states, in its most pertinent part (emphasis added), as follows: Beginning with 2013, the agricultural classification will be removed from your property. 12 On July 16, 2013, the Palm Beach County commissioners agreed to hold the countywide tax rate steady in The commission voted unanimously to set the countywide property tax rate at last year s level of $4.99 per $1,000 of taxable value. 13 Wherever this petition refers to rule, the intention is, alternatively, that the policy is a proposed rule. Exhibit A, a phantom anywhere else, can be nothing other than a rule or a proposed rule, as the official act cannot be gounded in thin air. Page 12 of 26

13 30. The underlying factual situation on conditions precedent is furnished by the Appraiser in Exhibit : Our records reveal that a portion of your property is used to raise exotic birds... While in past years you received the agricultural classification for this use, that classification was erroneously given. 31. The statement continues: Aviculture or the practice of keeping and breeding birds is not considered by this office 14 to be an agricultural purpose qualifying land for the favorable property tax treatment. Section (3)(b), Florida Statutes, permits only land used for bona fide agricultural purposes to be classified as agricultural land. Section (5) of the statute indicates that agricultural purposes includes, but is not limited to, horticulture; floriculture; vititiculture; forestry; dairy; livestock; poultry (emphasis present and not supplied); bee; piscisulture, when the land is used principally for the production of tropical fish; agquaculture; sod farming; and all forms of farm products as defined in s (3) and farm production. A. On April 10, 2010, the Florida Department of Agriculture and Consumer Services, via Assistant General Counsel, John W. Costigan, declared the following: Charles Bronson, Commissioner of Agriculture, has asked me to respond to your letter of March 30, 2010 seeking confirmation that the production of birds for the pet trade is a bona fide agricultural pursuit and protected by the Florida Right to Farm Act.,,, Section , Florida Statutes remains unchanged since 1995 and subsection (1) still defines Agriculture as...the science and art of production of plants and animals useful to humans... Furthermore, the Right to Farm Act itself, embodied in section , Florida Statutes, defines Farm in subsection (2)(a) to mean...the land, buildings, support facilities, machinnery, and other appurtenances used in the production of farm or aquaculture products and Farm 14 The Appraiser s new classification is contrary to Florida law and history. Page 13 of 26

14 Product is defined in subsection (3)(c) to mean...any plant, as defined in s , or animal useful to humans and includes, but is not limited to, any product derived there from. The legislature has accordingly made it very clear that the commercial production of birds for the pet trade is a bona fide agricultural activity afforded the protections of the Florida Right to Farm Act and all other Florida agricultural laws such as the agricultural property classification in s , Florida States and the nonresidential building exemption in s , Florida Statues, to name just a few (3)(b), Fla. Stat., states: The board of county commissioners may also reclassify lands classified as agricultural to nonagricultural when there is contiguous urban or metropolitan development and the board of county commissioners finds that the continued use of such lands for agricultural purposes will act as a deterrent to the timely and orderly expansion of the community. A. No such action has occurred , Fla. Stat. is the Florida Right to Farm Act that has covered Petitioner s agricultural classification since Paragraph (3) states, in pertinent part: DEFINITIONS. As used in this section: (a) Farm means the land, buildings, support facilities, machinery, and other appurtenances used in the production of farm or aquaculture products... (b) Farm operation means all conditions or activities by the owner, lessee, agent, independent contractor, and supplier which occur on a farm in connection with the production of farm, honeybee, or apiculture products... (c) Farm product means any plant, as defined in s , or animal or insect useful to humans and includes, but is not limited to, any product derived therefrom. (d) Established date of operation means the date the farm operation commenced... Page 14 of 26

15 34. Exhibit A is a statement of general applicability, because it is the only written evidence challenging the agricultural, property, tax reclassification for a class of property owners in Palm Beach County who raise rare and exotic birds on their land. In the face of contrary statements by the Florida Department of Agriculture (Exhibit C) and the Palm Beach County Tax Appraiser s recitation of Petitioner s agricultural classification as it is recorded within the Florida Department or Revenue (Exhibit B), what else can Exhibit A be called but a rule or proposed rule? 35. The APA (Florida Administrative Procedure Act, 120, Fla. Stat.) provides that rulemaking is not a matter of agency discretion; rather, each agency statement which is, in effect, a "rule," as that term is defined in the APA, must be adopted by the rulemaking procedure set forth in the APA as soon as feasible and practicable (1)(a), Fla. Stat. 36. A "rule" is generally defined in the APA as an agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form that imposes any requirement or solicits any information not specifically required by statute or by an existing rule (15), Fla. Stat. 37. An administrative agency is required to promulgate rules on those statements which are intended by their own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law. West's F.S.A (16). Coventry First, LLC v. State, Office of Ins. Regulation, 38 So. 3d 200 (Fla. Dist. Ct. App. 1st Dist. 2010). 38. Moreover, "Regulation" is synonymous to a rule enacted pursuant to the administrative law process. Page 15 of 26

16 39. Rule or regulation comes into being as a result of a legislative grant of authority to the executive branch department or agency. Snow v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 896 So. 2d 787 (Fla. Dist. Ct. App. 2d Dist. 2005), reh'g denied, (Feb. 22, 2005). 40. Finally, it is respectfully alleged, Palm Beach County s neglect of rulemaking by State authorities and attempts to promulgate policy of general applicability on an ad hoc basis is violative of Florida law. Kerper v. Department of Environmental Protection, 894 So. 2d 1006 (Fla. Dist. Ct. App. 5th Dist. 2005), reh'g denied, (Mar. 2, 2005). 41. Unlike Manatee, supra, there is authority for the Florida Department of Revenue to step in for a class of people in Palm Beach County whose agricultural use of land is occupied with raising exotic and rare birds and who are arbitrarily losing their agricultural classification. A. Footnote 2 of , Fla. Stat., provides: [t]he Department of Revenue is authorized, and all conditions are deemed met, to adopt emergency rules pursuant to ss (1) and , Florida Statutes, to administer the provisions of this act. The emergency rules shall remain in effect for 6 months after the rules are adopted and the rules may be renewed during the pendency of procedures to adopt permanent rules addressing the subject of the emergency rules, (citing Section 4, ch ) VIII. THE INVALID EXERCISE OF STATUTORY AUTHORITY , Fla. Stat., the statutory definitions surrounding Petitioner s activities, have been chiselled in granite since 1995 and subsection (1) still defines Agriculture as...the science and art of production of plants and animals useful to humans Furthermore, the Right to Farm Act itself, embodied in , Fla. Stat., defines Farm in subsection (3)(a) to mean... the land, buildings, support facilities, machinery, Page 16 of 26

17 and other appurtenances used in the production of farm and aqualculture products (emphasis added), and Farm Product is defined in subsection (3)(c) to mean... any plant, as defined in , or animal useful to humans and includes, but is not limited to, any product derived therefrom (emphasis added) 44. The Florida Legislature has accordingly made it very clear that the commercial production of birds for the pet trade is a bona fide agricultural activity afforded the protections of the Florida Right to Farm Act and all other Florida agricultural laws such as the agricultural property classification in , Fla. Stat. And the non-residential building exemption in , Fla. Stat., to name just a few. Please see Exhibit C Even if this were a legitimate reclassification, which Petitioner denies, the appraiser has failed to give the required statutory notice called for in (2.)(e), which provides: tax grab. The property appraiser must, no later than January 31 of each year, provide notice to the owner of land that was classified agricultural in the previous year informing the owner of the requirements of this paragraph and requiring the owner to certify that neither the ownership nor the use of the land has changed. 46. No such notice was given, rendering the Appraiser s action an unlawful, surprise, 47. The longstanding and contemporaneous interpretation of Florida law according the agricultural exemption to those raising rare, exotic birds has remained unchanged in the State of Florida. Please see Exhibits B & C. 15 For this section, credit is given to John W. Costigan, Assistant General Counsel of the Florida Department of Agriculture and Consumer Services. Exhibit D is a copy of his letter to The Organization of Professional Aviculturists, dated April 21, Page 17 of 26

18 48. In fact, by way of example, not limitation, the Palm Beach County Tax Appraiser confirmed the agricultural status of those using land to raise rare, exotic birds in the attached as Exhibit B, dated April 16, 2010, and quoted at Paragraph 12A above. IX. PALM BEACH COUNTY S HOME RULE DOES NOT IMPACT PROPERTY TAXATION 49. Palm Beach County has Home rule, codified in the Florida Constitution in Basically, it constitutionally guarantees Palm Beach County the authority to run their local governments and the services they provide, as they see fit, Except... The state retains all taxing authority, meaning the Legislature sets all the rules when it comes to taxation. (emphasis supplied) X. THE APPRAISER S REMOVAL OF THE AGRICULTURAL CLASSIFICATION AMOUNTS TO A DE FACTO RULE 50. In Deputy Chief Judge, David M. Maloney s rejection of the origiinal petition, he corroborates the following: I note that the last paragraph of the letter from the Palm Beach County s Property Appraiser to Ms. Pefley sets out a procedure for challenging the determination in the letter before the County s Value Adjustment Board ( VAB ) that must be commenced by filing it with the VAB by July 31, 2013 and the alternative of a circuit court lawsuit. 51. It is respectfully alleged, ALJ Maloney rules (using the term loosely) that Petitioner is substantially affected, the issue is real, not speculative, but the genesis of the complained-of policy does not reach the agency stage under the APA nor is the policy an agency statement. A. Petitioner has completely overhauled the original petition accordingly, Page 18 of 26

19 B. In this rule challenge, the Palm Beach County Tax Appraiser is an agency within the meaning of (14), Fla. Stat., Petitioner cites Manatee, supra, as being precedential. In that 2010 rule challenge, the parties were an individual and organizations within the sovereign subdivision, Manatee County. No state agency was pleaded or made a party. C. Chief Judge Robert Cohen signed off on Manatee, supra, with the classical Order of Assignment so prized by practitioners in these actions. 52. Petitioner is bifurcating the agricultural, classification removal between the VOA and DOAH, because the VOA does not address the class of affected people. The fact that said removal goes without authority makes it worse than a proposed or actual rule promulgated in accordance with , Fla.Stat. 53. DOAH has a long history of remedying class-based situations like this. In Nova Computing Services, Inc. et al. v. Reubin O D Askew et al., Case No (1976, Final Order 1977), the challenge of an improperly promulgated rule taxing custom software under 212, Fla.Stat., succeeded in ridding Florida taxpayers early on of an onerous and illegal tax. A. Demonstrating DOAH s facility in these kind of matters, another litigant, General Telephone, represented by Counsel, brought their action at about the same time on the same issue, but Nova was finished while General Telephone was still in the embryonic, pleading stage. 54. The fact is that, on a state level, DOAH has the most effective procedure of any State in our nation. It is a tradition, scrivener has engaged in since DOAH s inception in DOAH procedure is made to correct policies such as this. Page 19 of 26

20 A. In Manatee, supra, the rule challenge docketed by Chief Judge Cohen, was a strictly local matter, more obscure than this pocket book issue. And still, it flew! without cause. B. There s nothing vague about removal of the agricultural classification C. The word agency throughout in Manatee, supra, refers to localized, sovereign entities. No connection is pleaded to the Florida Department of Education nor is said Department made a party. D. In this case, the Florida Department of Revenue s role is pleaded by statute and is a party. The nexus between the Palm Beach County Tax Appraiser and the Florida Department of Revenue is so inextricable that the actions of the Appraiser amount to actions of the Department under the principle of state action. 2d 256 (Fla. 1970), quoting the decision: i. In Johnson v. Presbyterian Homes of Synod of Fla., Inc., 239 So. Church affiliated owner of home for aged brought actions against city and county contesting assessment of real property. The Circuit Court for Manatee County, Robert D. Willis, J., rendered judgment in favor of the owner and the defendants appealed. ii. The U.S. Supreme Court cast the controversy into the principle of state action, ruling, inter alia: A state cannot pass a law to aid one religion or all religions, but state action to promote the general welfare of society, apart from any religious considerations, is valid, even though religious interests may be indirectly benefited. If the primary purpose of the state action is to promote religion, that action is in violation of the First Amendment, Page 20 of 26

21 but if a statute furthers both secular and religious ends, an examination of the means used is necessary to determine whether the state could reasonably have attained the secular end by means which do not further the promotion of religion. See Murray v. Comptroller of Treasury, 241 Md. 383, 216 A.2d 897 (1966) (cert. den. sub nom. Murray v. Goldstein, 385 U.S. 816, 17 L.Ed. 55, 87 S.Ct. 36). Johnson, supra. iii. The case imparts two relevant principles: a. Without a legal analysis of the county/state paradigm, the U.S. Supreme Court cast into state action the county s and city s action of imposing a property tax. b. In analyzing the sovereign sub-division s action, the High Court ruled, no one segment of society should be arbitrarily favored, but state action to promote the general welfare of society, apart from any religious considerations, is valid... Johnson at 261. iv. This would suggest that a close examination is due in this case. E. Under state action in State ex rel. Lawson v. Woodruff, 134 Fla. 437, , 184 So. 81, (1938), the Florida Supreme Court, rendered a stirring opinion, quoted in pertinent part: It is also contended that the additional license tax for making such special sales upon those classed as itinerants is prohibitive and an arbitrary and unnecessary restriction of the right of property, and is in restraint of trade. The Constitution of the State of Florida contains the following: All men are equal before the law, and have certain inalienable rights, among which are those of enjoying and Page 21 of 26

22 defending life and liberty, acquiring possessing and protecting property, and pursuing happiness and obtaining safety. Sec. 1 Declaration of Rights All courts in this State shall be open, so that every person for any injury done him in his lands, goods, person or reputation shall have remedy, by due course of **84 law, and right and justice shall be administered without sale, denial or delay. Sec. 4, Declaration of Rights.... nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken Article 14 of the Amendments to the Federal constitution, U.S.C.A.Const. Amend. 14, contains the following: * * * No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. The above quoted organic provisions are a charter of human liberty and of individual rights against any and all abuses, or arbitrary, unjustly discriminating or essentially (above at page 445) unfair exercise of delegated governmental power, authority or duty, of any nature or character. State ex rel. Lawson, supra, at Page 447. F. This would suggest that from a Constitututional level, this case should be heard. XI. FLORIDA STATUTES PROVIDE THIS REMEDY 55. Part II of Chapter 194 entitled ADMINISTRATIVE AND JUDICIAL REVIEW OF PROPERTY TAXES prescribes the following: A. Circuit court to have original jurisdiction in tax cases. (1) The circuit courts have original jurisdiction at law of all matters relating to property taxation. Venue is in the county where the property is located, except that venue shall be in Page 22 of 26

23 Leon County when the property is assessed pursuant to s (4). (2) No action shall be brought to contest a tax assessment after 60 days from the date the assessment being contested is certified for collection under s (2), or after 60 days from the date a decision is rendered concerning such assessment by the value adjustment board if a petition contesting the assessment had not received final action by the value adjustment board prior to extension of the roll under s (3) Before an action to contest a tax assessment may be brought, the taxpayer shall pay to the collector not less than the amount of the tax which the taxpayer admits in good faith to be owing. The collector shall issue a receipt for the payment, and the receipt shall be filed with the complaint. Notwithstanding the provisions of chapter 197, payment of the taxes the taxpayer admits to be due and owing and the timely filing of an action pursuant to this section shall suspend all procedures for the collection of taxes prior to final disposition of the action. (4) Payment of a tax shall not be deemed an admission that the tax was due and shall not prejudice the right to bring a timely action as provided in subsection (2) to challenge such tax and seek a refund. 56. Contemporaneous with the filing of this rule challenge, petitioner is following the exhaustion prescribed by Chapter 194. Fla. Stat.; however, the remedy provided by Statute does not address a class of substantially affected people where an efficient remedy can be furnished by DOAH. 57. The fact that the statute does not refer to DOAH means no prejudice to the use of DOAH and does not speak to the Legislative Intent with respect to DOAH jurisdiction. Indeed, when DOAH was constituted in 1974, it was given parallel jurisdiction in cases between Florida agencies and the substantially affected. Ever since, it has posted a remarkable record. Page 23 of 26

24 58. A Pocket Guide to Florida s Administrative Procedure Act ( ), authored by the Administrative Procedures Committee, 16 illuminates DOAH s role: While the Florida Legislature establishes public policy, the executive branch has the power to issue rules having the force and effect of law. Rules provide a way of informing the regulated public of how agencies intend to apply laws and deter the improper implementation of policies, thereby helping to protect the people of Florida from administrative agencies noncompliance with legislative mandates or case-by-case decision making without regard to published policy. The average Florida citizen is as affected, if not more affected, by these agency rules than by court rulings, and administrative agencies regulate everything from healthcare facilities to local government expansion to electric utilities. (emphasis added) 59. DOAH was, in fact, designed for this situation, where a sovereign sub-division is making an unjustified tax grab. Oversight being relegated to the Department of Revenue, the legislative scheme, from every direction, favors the efficiency of this remedy for that: A. Procedurally, use of DOAH to handle this problem has many precedents. B. Utilization of DOAH is the fastest and most efficient way to resolve this. C. At a time when the economy is slow and citizens are hurting, exercising DOAH procedure will save the State and its people money. D. Comparing the judicial recourse cited by statute to the permitted DOAH recourse is no comparison, because judicial action involves a multiplicity of actions or a prohibitively expensive and delayed class action, where DOAH jurisdiction involves only one efficient remedy. 16 The publication was accessed on July 27, 2013 at Page 24 of 26

25 E. If the well-being of Floridians and the declaration of rights in the Florida Constitution are any kind of a guide, DOAH is the chosen forum. 60. At all time material, Petitioner has complied with the letter and spirit of the law. 61. All conditions precedent have been done or occurred. 62. The stare decisis for lands used in the raising of rare and exotic birds has been and continues to be agricultural and nothing has occurred to lawfully change that classification. XII. PRAYERS WHEREFORE, Petitioner, via qualified representative, moves DOAH to declare Exhibit A, a proposed rule or a rule that is an invalid exercise of delegated legislative authority and, pursuant to , Fla. Stat., declare removal of Petitioner s agricultural classification null in ab initio. More, if qualified representative fees are authorized, an award of same to the undersigned. (This part left intentionally blank) Page 25 of 26

26 XIII. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Rule Challenge has been furnished this 29 th day of July, 2013 by electronic service as follows: Governor Rick Scott, The Capitol, 400 S. Monroe Street, Tallahassee, Florida , (850) , at rick.scott@eog.myflorida.com; Palm Beach County Value Adjustment Board at ClerkWeb@MyPalmBeachClerk.com; Palm Beach County Department of Agriculture at Fax number (561) ; Florida Department of Agriculture at Fax (850) ; Florida Department of Revenue at Fax (850) Respectfully submitted, /Bob Sherin/ Bob Sherin, qualified representative S.W. 101 Ave. Miami, Florida Telephone (305) Page 26 of 26

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