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*{}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.
page 3 of 12
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.
Page 4 of 12
"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 $1,550" (presumablf_ a month), yet the Fraudulent LeasL provided by thelnvestigator to Plaintiff has N0 rental rate at all,
true and correct copy of
Exhibit E.
Page 5 of 12
ntiff's April 3,2017, correspondence is attached hereto as
responded to Plaintiff's reqrfest. ln his correspondence, Appraiser Attorney admitted
that he was in possession {olety of the first page of the Fraudulent Lease, that such
page did not carry Plaintiffls signature or initials, and that he could not obtain a
copy of the remaining pages of the Fraudulent Lease.
24. Regardless the fact that Appraiser's determination was devoid of any
supporting evidence, Appraiser insisted that Appraiser's termination of Plaintiff's
homestead was justified.
25. More importanfry, Appraiser Attorney explained that Plaintiff did not havel
the right to a hearing beforela tax lien on the Property was imposed. A true and correct
copy of the Appraiser Senior,Attorney's correspondence is attached hereto as Exhibit F.
26. Although Appraiser knew that the removal of Plaintiff's homestead was not
supported by any evidence, Appraiser revoked Plaintiffs homestead exemption, imposed
back taxes and penalties on plaintiff, and recorded tax liens on Ptaintiff's Property.
The lmposition of the Lien on the Propefi
27 . On or about April4, 2OlT,Appraiser recorded in the public records of Miami-
Dade County, as well as the chain of title for the Propefi, a Notice of Tax Lien for
Exemptions and Assessmerft Uirit"tions (the "First Lien"), a true and correct copy of
which is attached hereto as Exhibit G.
28. On or about June 2, 20'17, Appraiser recorded in the public records of
Miami-Dade County, as well as the chain of title for the Property, a second Notice of Tax
Page 6 of 12
Lien for Exemptlons and As$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.
Page 8 of t2
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
page 9 of 12
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
though fully set herein.
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
Page 10 of 12
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
though fully set herein.
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)
page11of12
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,
Page 12 of 12
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
17.