1. This is an action for a declaratory judgment and to challenge the partial removal

Transcription

1 IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CiRCUIT IN AND FOR SARASOTA COI.INTY. FLORIDA ROD REBHOLZ,as Trustee of the Rod Rebholz Revocable Trust, Plaintifl v. CaseNo. BILL FURST, as Property Appraiser of Sarasota County, Florida, BARBARA FORD-COATES, as Tar< Collector of Sarasota County, Florida, and MARSHALL STRANBURG, as Executive Director of the Florida Department of Revenue, Defendants. COMPLATNT FOR peclaratory Rpl,iI"H.E Plaintiff, Rod Rebholz, as Trustee of the Rod Rebholz Revocable Trust. sues Defendants, Bill Furst, as Property Appraiser of Sarasota County, Florida ("Appraiser"), Barbara Ford- Coates, as Tax Collector of Sarasota Countv, Florida ("Collector'), and Marshall Stranburg, as Executive Director of the Florida Department of Revenue ("Departmenf'), and alleges: 1. This is an action for a declaratory judgment and to challenge the partial removal of a homestead exemption on property in Sarasota County, Florida and the imposition of a tax lien on that property. This Court has jurisdiction pursuant to Chapter 194, Florida Statutes, article V, sections 5 and 20 of the Florida Constitution, and section , Florida Statutes. 2. Plaintiff, Rod Rebholz, as Trustee of the Rod Rebholz Revocable Trust. is the owner of certain real property located at 2538 Trinidad Street in Sarasota, Florida and identified as Parcel No ['the Property"].

2 3. Appraiser is sued herein in his official capacity and is a necessary party to the action pursuant to section I (2), Florida Statutes. 4- Collector is sued herein in her official capacity and is a necessary party to the action pursuant to section (3), Florida Statutes. 5. Defendant Marshall Stranburg is sued herein in his official capacity and is a necessary party to the action pusuant to section (5), Florida Statutes. 6. Frorn October27,1993 through and including January 1,2014, the Plaintiff owned the Property and maintained it as his permanent residence. 7. From October2T, 1993 through and including January l,?}l4,the Property was classified and assessed by the Property Appraiser as owner-occupied residential property. 8. In 1995, the Plaintiff applied for and received a homestead exemption on the Property. The Plaintiff continued to receive a homestead exemption on the Property through the 2014taxyear- 9. On September 24,2014, Appraiser sent the Plaintiff a letter advising him that it had come to the Property Appraiser's attention that the Plaintiffmay have been improperly receiving a homestead exemption in the An tax years. A copy of the leuer is attached and incorporated herein as Exhibit "A." The Property Appraiser contended in the letter that a 15% portion of the Plaintiff s property was not eligible for the homestead exemption, pursuant to section (13), Florida Statutes, because it was being used for rental purposes. 10. Section (13), Florida Statutes provides that: "Real estate used and owned as a homestead" means real property to the extent provided in s.6(a), Art. VII of the State Constitution, but less any portion thereof used for commercial purposes, with the title of such property being recorded in the official records of the county in which the property is located. Property rented for more than 6 months is presumed to be used for commercial purposes.

3 1 I. On Novemb er 5, 2014, Appraiser's office sent the Plaintiff a second letter advising him that they had recorded a tax lien against the Property to recover taxes for the years and 2013 which would have been due if the Plaintiff had not received a homestead exemption on his entire residence in those years. A copy of the letter is attached and incorporated herein as Exhibit o'b-" The stated basis for the lien was the PlaintifFs rental of l a/o ofthe property as ofjanuary 1,2004. L2. The Property Appraiser recorded the tax lien in the Public Records as Inskument No on November 6,2014. A copy of the recorded tax lien is attached and incorporated herein as Exhibit *C." COUNT I: UNLAWFUL TAX LIEN 13. Plaintiffre-alleges and incorporates by reference the allegations ofparagraphs 1-12 as though fulty set forth herein. t4. The Plaintiffwas entitled to a homestead exemption on 100% of the Property in the years and 20i Specifically, pursuant to Article 6(a) of the Florida Constitution, because the Plaintiff owned the Properfy and maintained his permanent residence on the Property, the Plaintiffwas entitled to a homestead exemption on the entire Properfy The definition of "real estato used and owned as a homestead" of section (13), Florida Statutes, which the Property Appraiser relied on in removing a portion of the PlaintifPs homestead exemption, is inapplicable to the determination of the extent of a taxpayer's entitlement to a homestead exemption under Article 6(a) of the Florida Constitution. Rather, the phrase "real estate owned and used as a homestead" is the more narrow standard used for determining entitlement to the complete exemption from ad valorem taxation provided by

4 sections , i and for propeny of disabled veterans and their surviving spouses, and for quadriplegics and other qualified disabled persons- 17. Thus, while Florida law directs the Property Appraiser to limit the complete exemption granted by sections , and to only those portions of the ta<payer's property that are not used for commercial purposes, the Property Appraiser does not have authority to deny a basic Article 6(a) homestead exemption to portions of a homestead property that are used for commercial purposes. 18. Because the Plaintiffwas entitled to a homestead exemption on 100% of the Property for the years and 2013, the Property Appraiser's retroactive removal of a portion of the homestead exemption and imposition of a tax lien was unlawful. WHEREFORE, Plaintiff demands that this Court enter an order reinstating the 2A and 2013 homestead exemptions on 100% of the subject property; cancelling the tax lien; awarding Plaintiff his costs incurred in bringing this action pursuant to section , Florida Statutes; and awarding such other general relief as may be just and equitable. COUNT II: UNCONSTITUTIONALITY OF SECTION (13) 19. Plaintiffre-alleges and incorporates by reference paragraphs 1-12 and of this Complaint as though fully set forth herein. 20. The requirernents for a homestead exemption are set forth in Article 6 of the Florida Constitution. The Florida Constitution does not require that the homestead property be "owned and used as a homestead," nor does it prohibit the homestead property from being partially used for commercial purposes. 2l- To the extent that section (13), Florida Statutes authorizes the county property appraisers to deny a homestead exemption to portions of homestead property that are

5 used for commercial purposes, section (13), Florida Statutes is invalid and unconstitutional as it exceeds the authority of the legislature to impose such a requirement, and the statute is therefore an impermissible incursion on the powers of the judicial branch in violation of the doctrine of separation of powerso as set forth in a*icle II, section 3 of the Florida Constitution. 22. The Property Appraiser thus does not have authority to deny a homestead exemption to portions of homestead propefty that are used for commercial purposes. 23. Because the Plaintiffwas entitled to a homestead exemption on 100% of ths Property for the years and 2013, the Property Appraiser's retroactive removal of a portion of the homestead exemption and imposition of a tax lien was unlawful. WHEREFORE, Plaintiffdemands that this Court enter an Order declaring section (13) invalid and unconstitutional; reinstating the2004-2a11 and 2013 homestead exemptions on 100% of the subject property; cancelling the tax lien; awarding the Plaintiffhis costs incurred in bringing this action, and aw-arding such other general relief as may be just and equitable. COUNT III: DENIAL OF EQUAL PROTECTION 24. Plaintiffs re-allege and incor?orate by reference the allegations of paragraphs 1-12 and as though fully set forth therein. 25. On information and belief the Appraiser has not denied a homestead exemption to the other property owners in Sarasota County, Florida who rent portions of their residence to roommates, or who use a portion of their residence for a home-based business or other commercial purpose.

6 26. Rather, the Appraiser has singled out the Plaintiff by discriminatorily treating the Plaintiff differently from all or substantially all other property owners w'ho have received a homestead exemption on property that is rented to one or more roommates or used for a homebased business or other commercial purpose. 27. The Appraiser's discriminatory treatment of the Plaintiff has been detrimental to the Plaintiff in that it has caused him, and will cause him in the future, to bear a disproportionately high share of the tax burden. 28. The Appraiser's discriminatory treatment of the Plaintiff is not reasonably related to any important governmental interests. 29. Appraiser's retroactive removal of a portion of the Plaintiff s homestead exemption and recording of a tax lien on the Property thus violated the Plaintiffs right to equal protection of the laws pursuant to the Fourteenth Arnendment to the United States Constitution and Article I, section 2 of the Florida Constitution. WHEREFORE, Plaintiff demands that this Court enter an Order reinstating the and 2013 homestead exemptions on 100% of the Property; cancelling the tax Iien; awarding the Plaintiff his costs incurred in bringing this action. and awarding such other general relief as may be just and equitable. COUNT IV: DENIAL OF DUE PROCESS 30. Plaintiffre-alleges and incorporates by reference paragraphs 1-12 ofthis Complaint as though fully set forth herein. 31. Section l96,l6l,floridastatutesrequiresthepropertyappraisertonotifythe property owner of his intent to record a tax lien, and to give the owner 30 days to pay the taxes, penalties and interest before the lien may be recorded.

7 32. The Property Appraiser recorded the tax lien without giving the Plaintiff the required notice. 33. The recording of the tax lien by the Property Appraiser thus deprived the Plaintiff of his property without due process of law, in violation of the Due Process Clause of the Fifth Amendment to the United States Constitution and article I, section 9 of the Florida Constitution. WHEREFORE, Plaintiff dernands that this Court enter an Order cancelling the tax lien; awarding the Plaintiff his costs incurred in bringing this action, and awarding such other general relief as may be just and equitable. Dated: frl At gq-'' JOHNSON LEGAL OF FLORIDA, P.L Marquesas Cir. Suite 208 P.O. Box Sarasot4 FL (941) 926-1ts5 Fax: (941) si ohnson@j ohnsonlesalfl ^com Attomey for Plaintiff Rod Rebholz L. JOHNSON Florida Bar No