03-003164RP Joel W. Robbins, The Property Appraiser Of Miami-Dade County, And The Miami-Dade County Value Adjustment Board vs. Department Of Revenue Status: Closed DOAH Final Order on Monday, March 1, 2004.

Summary: The challenged portions of the proposed rule pertaining to evidence swap between the taxpayer and the property appraiser in the value adjustment board hearings are not invalid exercises of delegated legislative authority.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOEL W. ROBBINS, THE PROPERTY )

APPRAISER OF MIAMI - DADE COUNTY, )

AND THE MIAMI - DADE COUNTY VALUE )

ADJUSTMENT BOARD, )

)

Petitioners, )

)

vs. ) Case No. 03 - 3164RP

)

DEPARTMENT OF REVENUE, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a final hearing was conducted on

December 16, 2003, at Tallahassee, Florida, before

Administrative Law Judge Claude B. Arrington of the Division of

Administrativ e Hearings.

APPEARANCES

For Petitioner Thomas W. Logue, Esquire

Joel W. Robbins: Assistant County Attorney

Miami - Dade County Attorney

111 N. W. 1st Street

Miami, Florida 33128 - 1993

For Petitioner Steven A. Schultz, Esquire

Value Adjustment Brooks, Hermelee, Geffin

Board: 25 Southeast Second Street, Suite 1135

Miami, Florida 33131

For Respondent: Martha A. Berrera, Esquire

Mark T. Aliff, Esquire

Office of the Attorney General

Revenue Litigation Section

The Capitol, Plaza Level 01

Tallahassee, Florid a 32399 - 1050

Franz E. Dorn, Esquire

Florida Department of Revenue

Office of the General Counsel

Post Office Box 6668

Tallahassee, Florida 32314 - 6668

STATEMENT OF THE ISSUES

Whether the underlined portions of Respondent's proposed

Rule 12D - 10.0044(4)(b) are invalid exercises of delegated

legislative authority:

(b) If the property appraiser does not

provide the information within the time

required by subsection (3) and at least five

calendar days before the hearing , the

taxpayer shall be entitled to reschedule the

hearing. If the property appraiser provides

the information within the time set forth in

subsection (5) but less than five cal endar

days before the hearing , the petitioner's

submission of the information shall qualify

as a written request for rescheduling as

provided in subsection (9). In such

circumstances, the clerk shall reschedule

the hearing upon being so advised by the

pet itioner.

Whether the underlined portion of Respondent's proposed

Rule 12D - 10.0044(5) is an invalid exercise of delegated

legislative authority:

(5)(a) The exchange in subsection (2) and

(3) shall be delivered by regular or

certified U.S. mail, person al delivery,

overnight mail, FAX or email. It shall be

sufficient if at least three FAX or email

attempts are made to such address (sic). If

more than one FAX number is provided, three

(3) attempts must be made for each number to

satisfy this requirement . The taxpayer and

property appraiser may agree to a different

timing and method of exchange. "Provided"

means made available in the manner

designated by the property appraiser or by

the petitioner in his/her submission of

information, as via email, facs imile, U.S.

mail, or at the property appraiser's office

for pick up. If the petitioner does not

designate his/her desired manner for

receiving the property appraiser's

information, the information shall be

provided by the property appraiser by

depositing it in the U.S. mail.

Whether Respondent's proposed Rule 12D - 10.0044(8) is an

invalid exercise of delegated legislative authority:

(8) The information shall be in writing and

may be delivered by regular or certified

U.S. mail or personal delivery so that the

information shall be received timely.

PRELIMINARY STATEMENT

Succinctly stated, Mr. Robbins 1 asserts that the portions of

the proposed rule at issue in this proceeding will make it

difficult if not impossible for a property appraiser to comply

with the rule and will result in the rescheduling of an

inordinate number of hearings. The VAB agrees that the property

appraiser will have difficulty in complying with the rule and

asserts that rescheduling a large number of hearings will

disrupt its proceedi ngs.

Petitioners focus their challenge on two aspects of the

proposed rule. First, they assert that the underlined portions

of Section 4(b) of the proposed rule provides a property

appraiser less time to deliver certain required information to a

taxpayer than does the applicable statute and that the time

provided by the proposed rule is insufficient.

Second, Petitioners challenge the underlined portions of

Section (5)(a) and Section (8) of the proposed rule, which

pertain to the property appraiser’s del ivering the required

information by U.S. mail. Petitioners assert that requiring

delivery by mail as a default method of delivery is beyond the

requirements of the applicable statute and unrealistic in light

of the short time frames involved.

Petitioners allege that the challenged portions of the

proposed rule are invalid exercises of delegated legislative

authority pursuant to Sections 120.58(8)(c) and (e), Florida

Statutes. 2 All other issues arguably raised by their initial

pleading have been abandoned by Petitioners either at the final

hearing or in their Proposed Final Order.

Petitioners do not challenge DOR's authority to adopt rules

implementing the statutes at issue in this proceeding.

Petitioners agree that DOR has the authority to adopt rules t o

implement the subject statutes and challenge only the content of

the proposed rule. Petitioners also do not challenge the

procedures or the process DOR followed in adopting the proposed

rule.

At the final hearing, Petitioners presented the testimony

o f Eddie Stephens and Frank Jacobs. Mr. Stephens is an attorney

whose law firm represents the property appraiser of Palm Beach

County, Florida. Mr. Jacobs is the Assistant Property Appraiser

for Miami - Dade County. Petitioners presented 22 sequentially

nu mbered exhibits, each of which was admitted into evidence.

Among those exhibits was a composite exhibit consisting of the

deposition taken of Roberto Alfaro on December 5, 2003, together

with exhibits to that deposition. Mr. Alfaro is employed by

Miami - D ade County as the manager of the VAB.

Respondent presented the testimony of Steve Keller, who is

DOR's Chief Assistant General Counsel for Property Tax

Administration. Respondent offered ten sequentially numbered

exhibits, each of which was admitted into evidence. Among those

exhibits were the depositions of Frank Gonzalez, Ann Richards,

Manuel Pernas, Frank Jacobs, and Roberto Alfaro (taken

October 7, 2003), together with the exhibits to each deposition.

Mr. Gonzalez is employed by Miami - Dade County as the hearing

scheduler for the VAB. Ms. Richards is employed by Broward

County, Florida, and has direct oversight of the activities of

Broward County's value adjustment board. Mr. Pernas is employed

by Mr. Robbins to appraise commercial property and to schedule

the VAB hearings involving commercial property.

At the request of DOR, the undersigned took official

recognition of Fla. R. Civ. P. 1.080(b), Fla. R. Juv. P.

8.225(5), Fla. Sm. Cl. R. 7.080(b), and Fla. Admin. Code R. 28 -

106.217.

A Transcript of the proceedings was filed on January 7,

2004. Petitioners filed a joint Proposed Final Order and DOR

filed a Proposed Final Order. The Proposed Final Orders have

been duly - considered by the undersigned in the preparation of

this Final Order.

FINDINGS OF FACT

1. Mr. Robbins is the property appraiser for Miami - Dade

County. The VAB is the duly - constituted value adjustment board

for Miami - Dade County. Both Petitioners will be substantially

affected if Respondent adopts the challenged portions of the

pr oposed rule at issue in this proceeding. Both Petitioners

have standing in this case.

2. DOR has the responsibility to aid and assist property

appraisers, tax collectors and value adjustment boards with

respect to the assessment and collection of propert y taxes

pursuant to Chapters 192 - 197, Florida Statutes. In that

capacity, DOR promulgates rules implementing relevant

legislation ever year. DOR promulgates rules in many areas,

generally issues advisement letters, and interacts with local

officials invo lved in the assessment and value adjustment board

process.

3. Every year, each county property appraiser is required

to determine the value of all property in the county that is

subject to ad valorem taxation. The valuation is as of

January 1 of each yea r. See §§ 192.011 and 192.042, Fla. Stat.

Each property appraiser is required to provide each taxpayer a

notice containing the information required by Section 200.069,

Florida Statutes. 3 This notice is referred to as the TRIM

notice, which is an acronym for Truth in Millage. The TRIM

notice is typically mailed to the taxpayer before the end of

August of each year. The TRIM notice includes the property

appraiser's valuation of the property.

4. For years Florida taxpayers have had the right to

challen ge a property appraiser's valuation and other issues

pertaining to ad valorem taxation. Value adjustment boards,

created by Section 194.015, Florida Statutes, serve as a forum

to resolve disputes between taxpayers and county property

appraisers regarding the appropriate value of real property or

tangible personal property for ad valorem taxation purposes. 4

5. Section 194.011(3)(d), Florida Statutes, sets a

deadline for a taxpayer to file a petition for a hearing before

a value adjustment board. A petit ion challenging the valuation

of property must be filed before the 25th day following the

mailing of the TRIM notice. Petitions involving other issues

must be filed on or before the 30th day following the mailing of

the TRIM notice. Because of these dead lines, a value adjustment

board typically knows by the end of September the maximum number

of petitions that will have to be resolved for that annual

cycle.

6. Pursuant to Section 194.015, Florida Statutes, a value

adjustment board consists of three m embers of the governing body

of the county and two members of the school board.

7. Section 194.011, Florida Statutes, provides certain

procedures to be followed in the event a taxpayer challenges an

assessment. Section 194.011(2), Florida Statutes, p rovides as

follows:

(2) Any taxpayer who objects to the

assessment placed on any property taxable to

him or her may request the property

appraiser to informally confer with the

taxpayer. Upon receiving the request, the

property appraiser, or a member o f his or

her staff, shall confer with the taxpayer

regarding the correctness of the assessment.

At this informal conference, the taxpayer

shall present those facts considered by the

taxpayer to be supportive of the taxpayer's

claim for a change in the ass essment of the

property appraiser. The property appraiser

or his or her representative at this

conference shall present those facts

considered by the property appraiser to be

supportive of the correctness of the

assessment. However, nothing herein shall

be construed to be a prerequisite to

administrative or judicial review of

property assessments.

8. If the dispute is not resolved, the taxpayer may file a

petition with and have a hearing before the county's value

adjustment board. The full value adjust ment board can hear and

decide a petition, or it can appoint a special master to hear

the petition.

9. Typically in large counties, including Miami - Dade

County, a group of special masters are appointed to hear cases

for the county's value adjustment boa rd. In Miami - Dade County,

the clerk of the VAB schedules the hearings before each special

master. A special master typically hears between 50 and 60

petitions in a day. The series of hearings before a special

master for a particular day is referred to a s a board. A board

is similar to a court docket, where one case is heard after the

other. As is apparent from the number of petitions heard in a

day by a special master, a hearing before the VAB typically

lasts less than 15 minutes. Even with typically brief hearings,

the value adjustment board process in Miami - Dade County has in

recent years required four to six boards each business day over

a period of nine to ten months to hear all petitions filed with

the VAB.

10. Mr. Robbins usually has an empl oyee (referred to as an

official) to represent his office at a board before a special

master. In all, Mr. Robbins has approximately 20 employees who

serve as officials plus support staff dedicated to VAB

proceedings. It usually takes an official five to six working

days to prepare his or her presentations for one board.

Typically, an official is assigned a new board every six to

seven business days.

11. The value adjustment board process has a large impact

on taxpayers and local governments in Miami - Dad e County. In

2001, the VAB removed from the certified tax roll of Miami - Dade

County over $1,600,000,000 in assessment dollars, which

translated to approximately $39,500,000 fewer tax dollars. In

2002, the VAB removed from the certified tax roll of Miami - Dade

County over $1,900,000,000 in assessment dollars, which

translated to approximately $44,600,000 fewer tax dollars.

12. The VAB heard approximately 24,500 petitions for tax

year 2002 and it is estimated that 28,500 petitions will be

heard for tax year 2003.

13. Prior to 2002, the taxpayer had to disclose his or her

evidence to the property appraiser prior to the hearing, but

there was no requirement that the property appraiser had to

provide his or her evidence to the taxpayer prior to the

hearing. Frequently, the taxpayer would see the property

appraiser's evidence for the first time at the hearing itself.

14. In 2002, the Florida Legislature enacted Chapter 2002 -

18, Laws of Florida, which amends portions of the law referred

to as the “Taxpayers Bill of Rights,” including portions of

Chapter 194, Florida Statutes.

15. Referring to hearings before a value adjustment board,

Section 2 of Chapter 2002 - 18 created subsection (4) and (5) of

Section 194.011, Florida Statutes, to read as follows:

(4) (a) At least 10 days before the

hearing, the petitioner [the taxpayer] shall

provide to the property appraiser a list of

evidence to be presented at the hearing,

together with copies of all documentation to

be considered by the value adjustment board

and a summary of evidence to be presented by

witnesses.[ 5 ]

(b) No later than 5 days after the

petitioner provides the information required

under paragraph (a), the property appraiser

shall provide to the petitioner a list of

evidence to be presented at the hearing,

together with copies of all documentation to

be considered by the value adjustment board

and a summary of evidence to be presented by

witnesses. The evidence list must contain

the property record card if provided by the

clerk.

(5) The departme nt shall by rule

prescribe uniform procedures for hearings

before the values adjustment board which

include requiring:

(a) Procedures for the exchange of

information and evidence by the property

appraiser and the petitioner consistent with

s. 194.032[ 6 ] ; and

(b) That the value adjustment board hold

an organizational meeting for the purpose of

making these procedures available to

petitioners.

16. In response to the mandate found in Section

194.011(5), Florida Statutes, Respondent proposes, pertine nt to

this proceeding, to adopt Rule 12D - 10.0044, which provides, in

pertinent part, as follows.

(2) Subsequent to the mailing or sending

of the hearing notice, and at least 10 days

before the scheduled hearing, the petitioner

shall provide the property appraiser with a

list and summary of evidence to be presented

at the hearing. The list and summary must

be accompanied by copies of documentation to

be presented at the hearing.

(3) No later than 5 days after the

property appraiser receives the petit ioner's

documentation, the property appraiser shall

provide the petitioner with a list and

summary of evidence to be presented at the

hearing. The list and summary must be

accompanied by copies of documentation to be

presented at the hearing. The evidenc e list

must contain the property record card if

provided by the clerk. In computing the 5

day period prescribed in this subsection,

intermediate Saturdays, Sundays, and legal

holidays shall be excluded in the

computation. See Rule 1090(a), Florida

Rules of Civil Procedure, entitled Time.[ 7 ]

(4)(a) If the taxpayer does not provide

the information to the property appraiser at

least ten days prior to the hearing pursuant

to subsection (2), the property appraiser

need not provide the information to the

tax payer pursuant to subsection (3).

(b) If the property appraiser does not

provide the information within the time

required by subsection (3) and at least five

calendar days before the hearing, the

taxpayer shall be entitled to reschedule the

hearing. If the property appraiser provides

the information within the time set forth in

subsection (5) but less than five calendar

days before the hearing, the petitioner's

submission of the information shall qualify

as a written request for rescheduling as

provided in subsection (9). In such

circumstances, the clerk shall reschedule

the hearing upon being so advised by the

petitioner.

(5)(a) The exchange in subsection (2) and

(3) shall be delivered by regular or

certified U.S. mail, personal delivery,

overnig ht mail, FAX or email. It shall be

sufficient if at least three FAX or email

attempts are made to such address (sic). If

more than one FAX number is provided, three

(3) attempts must be made for each number to

satisfy this requirement. The taxpayer and

property appraiser may agree to a different

timing and method of exchange. "Provided"

means made available in the manner

designated by the property appraiser or by

the petitioner in his/her submission of

information, as via email, facsimile, U.S.

mail, or at the property appraiser's office

for pick up. If the petitioner does not

designate his/her desired manner for

receiving the property appraiser's

information, the information shall be

provided by the property appraiser by

depositing it in the U.S. mail.

(b) The information shall be sent to the

address listed on the petition form;

however, it may be submitted to an email or

FAX address if given.

(c) In computing any period of time

prescribed or allowed by these rules, the

day of the act, event, or d efault from which

the designated period of time begins to run

shall not be included. The last day of the

period so computed shall be included unless

it is a Saturday, Sunday, or legal holiday,

in which event the period shall run until

the end of the next day which is neither a

Saturday, Sunday, or legal holiday. If the

tenth day before a hearing is a Saturday,

Sunday, or legal holiday, the information

under subsection (2) shall be provided no

later than the previous business day.

* * *

(7) Hearin g procedure: . . . A property

appraiser shall not appear at the hearing

and use undisclosed evidence that was not

supplied to the petitioner as required. The

normal remedy for such noncompliance shall

be a rescheduling of the hearing to allow

the petiti oner an opportunity to review the

information of the property appraiser.

(8) The information shall be in writing

and may be delivered by regular or certified

U.S. mail or personal delivery so that the

information shall be received timely.

(9) The p etitioner may reschedule the

hearing one time by submitting a written

request to the clerk of the board no less

than 5 calendar days before the scheduled

appearance.

(10) This rule provides procedures for

information and evidence exchange between

the petitioner and property appraiser,

consistent with s. 194.032 F.S., subject to

the provisions of 194.034(1)(d), F.S., and

subsection 12D - 10.003(4), F.A.C., relating

to a request by a property appraiser for

information from the petitioner in

connection with a filed petition, which

information need not be provided earlier

than ten days prior to a scheduled hearing

pursuant to subsections (2) and (5).

(11) The value adjustment board shall

hold an organizational meeting and must make

the uniform procedures a vailable to

petitioners. Such procedures shall be

available a reasonable time following the

organizational meeting and shall be

available a reasonable time before the

commencement of hearings in conformance with

this rule. The Board [sic] shall be deemed

to have complied if it causes petitioners to

be notified in writing, along with or as

part of the notice of hearing, of the

evidence and availability of its procedures

and include notice as to the exchange of

information contained in this rule. The

Board [sic] is authorized to use other

additional or alternative means of

notification directed to the general public

or specific taxpayers, as it may determine.

17. The taxpayer is entitled to notice of the hearing of

his or her hearing by a value adjustment board (or a special

master on behalf of the value adjustment board) of no less than

20 calendar days. See § 194.032 (2), Fla. Stat. 8

18. The taxpayer must provide the property appraiser with

the taxpayer's evidence no less than ten calendar days befor e

the scheduled hearing to trigger the requirement that the

property appraiser provide his evidence to the taxpayer prior to

the hearing. If the taxpayer does not provide its evidence to

the property appraiser at least ten days prior to the hearing,

the e xchange of evidence requirement is not triggered and the

taxpayer is not entitled to the property appraiser's evidence

prior to the hearing.

19. If the exchange of evidence requirement is timely

triggered by the taxpayer, Section 194.011(4)(b), Florida

St atutes, requires the property appraiser to provide his or her

evidence to the taxpayer within five days after receiving the

taxpayer’s information. Pursuant to Section 3 of the proposed

rule (which is not being challenged in this proceeding) this

five - day period consists of business days.

20. Pursuant to Section 194.032(2), Florida Statutes, t he

taxpayer has the right to one continuance of the hearing if the

request for the continuance is made at least five calendar days

before the scheduled hearing (t he so - called "freebie"). In

addition to the freebie, the VAB typically grants a taxpayer’s

motion for continuance based on one or more of the following

grounds:

A. A recent death within the immediate

family of the taxpayer or his

representative;

B. A medical emergency;

C. Proper notification was not afforded

the taxpayer pursuant to the provisions of

Rule 12D - 10.0004(2).

D. A clerical error was made by the

county's staff that precluded the appearance

of the taxpayer before the board as

schedule d.

E. The taxpayer or the taxpayer's agent

is scheduled to appear before another

governmental entity on the same date and

within the same time frame as the scheduled

appearance before the board.

F. The taxpayer's scheduled appearance

falls on a rel igious holiday.

G. The taxpayer has not been afforded

reasonable notice of the requirement to have

the professional appraiser who prepared the

taxpayer's appraisal report physically

present at the hearing to testify.

H. The taxpayer is unable to su bmit an

appraisal report of other documentary

evidence to the property appraiser prior to

the scheduled hearing if reasonable cause

exists for failure to do so.

I. The property appraiser failed to

comply with the evidence exchange

requirements of Sect ion 194.011(4), and the

taxpayer requests a consequence of that

failure.

21. The proposed rule creates an additional ground for the

taxpayer to request that a hearing be rescheduled. Pursuant to

the portion of Section (4)(b), Florida Statutes, of the proposed

rule being challenged in this proceeding, the taxpayer has a

right to a continuance of the scheduled hearing (a) if the

taxpayer has triggered the requirement for the exchange of

evidence set forth in both Section 194.011 and the proposed rule

and (b) the taxpayer does not receive the property appraiser’s

evidence at least five calendar days before the hearing.

22. It is realistic to anticipate that many taxpayers will

trigger the exchange of evidence provision on the tenth day

before the schedu led hearing. In most of those cases, the

taxpayer will not receive the property appraiser's evidence five

calendar days before the scheduled hearing even if the property

appraiser provides his or her evidence to the taxpayer on the

fifth business day foll owing receipt of the taxpayer's evidence.

In virtually all of those cases, the taxpayer will not receive

the property appraiser's evidence five calendar days before the

hearing if the property appraiser mails that evidence to the

taxpayer or if the proper ty appraiser needs time to gather

rebuttal evidence. 9

23. The number of hearings that will have to be

rescheduled before the VAB has not been quantified, but the

number is substantial and additional costs will be incurred.

While it is clear that the resc heduling of a substantial number

of hearings before the VAB will increase the workload for

Mr. Robbins's office and for the VAB staff, the evidence did not

establish that the proposed rule places an impossible burden on

either Mr. Robbins or the VAB. With appropriate planning both

Petitioners should be able to manage the rescheduling of a large

number of value adjustment board hearings.

24. DOR drafted the proposed rule with the intent that the

interests of the taxpayer and the property appraisers be

ba lanced to the fullest extent possible within the authority

granted by Section 194.011(4) and (5), Florida Statutes.

25. The addition of the non - statutory ground for a

continuance is intended to provide the taxpayer a reasonable

period of time to review th e property appraiser's evidence prior

to a hearing.

26. In determining what would constitute a reasonable

period of time for a taxpayer to have to review the property

appraiser’s evidence, DOR considered several factors. DOR

considered the statutes a nd the legislative intent. DOR

considered the type of evidence the property appraiser would

typically have to provide the taxpayer and the availability of

such evidence. DOR considered that Section 194.034(1)(d),

Florida Statutes, 10 has been historically interpreted as

requiring the taxpayer to provide his evidence to the property

appraiser "a reasonable time" before the value adjustment board

hearing, and that “a reasonable time" has been historically

interpreted to be five business days before the heari ng. DOR

considered that the taxpayer must exercise the freebie

continuance no less than five calendar days before the hearing.

DOR considered input from representatives of taxpayers and

property appraisers during the rulemaking process.

27. In draftin g the provision that delivery by mail would

be the default method of delivery, DOR considered that the rule

will be of statewide applicability, that delivery by mail is the

most common default method of delivery, and that not all

taxpayers or property appr aisers have the capabilities to

receive or send information by facsimile, e - mail, or hand

delivery.

28. DOR entered into a long rule - promulgation process,

which gave all interested parties, including Mr. Robbins and the

VAB, an opportunity to provide in put into the rules that would

govern the process of exchange of information prior to VAB

hearings. Mr. Robbins and the VAB actively participated in the

rule - making process and made their views known throughout the

process. The promulgation of the propose d rule was delayed to

give interested parties an opportunity to seek to have the

legislation amended, but no amendments were passed during the

2003 Legislative Session.

29. The Notices of Proposed Rulemaking for the proposed

rule contained the summary of statement of estimated regulatory

costs, which requested that any person who wishes to provide

information regarding the regulatory costs or who wished to

provide a proposal for a lower cost regulatory alternative must

do so within 21 days of the notice . No comments or proposals

were received on the regulatory cost statement at any point

during the rule promulgation process. Neither Mr. Robbins nor

the VAB submitted a statement of alternative regulatory costs

during the rule promulgation process or at the final hearing.

Neither Petitioner established at the final hearing that a less

costly alternative to the proposed rule would substantially

accomplish the statutory objectives.

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

juris diction over the parties and the subject matter of this

proceeding. § 120.56, Fla. Stat.

31. Section 120.56(2)(a), Florida Statutes, establishes

the burden of proof pertinent to this proceeding as follows:

. . . The petitioner has the burden of

go ing forward. The agency has the burden to

prove by a preponderance of the evidence

that the proposed rule is not an invalid

exercise of delegated legislative authority

as to the objections raised.

32. Pursuant to Section 120.56(2)(c), Florida Statutes, a

proposed rule is not presumed to be valid or invalid.

33. The standard of proof is a preponderance of the

evidence. See §§ 120.56(2)(a) and 120.57(1)(j), Fla. Stat.

34. Section 120.52(8), Florida Statutes, defines "invalid

exercise of delegated legis lative authority" to mean:

. . . action which goes beyond the powers,

functions, and duties delegated by the

Legislature. A proposed or existing rule is

an invalid exercise of delegated legislative

authority if any one of the following

applies:

* * *

(c) The rule enlarges, modifies, or

contravenes the specific provisions

of law implemented, citation to which

is required by s. 120.54(3)(a)1.;

* * *

(e) The rule is arbitrary or capricious.

. . .

35. A property appraiser is in compliance with bo th the

statute and the rule if the property appraiser provides his

evidence to the taxpayer by depositing the evidence in the U.S.

mail or by electing one of the other authorized delivery means

within five business days of receiving the taxpayer's evidence .

When the taxpayer receives the property appraiser’s evidence is

often out of the control of the property appraiser. The

proposed rule providing the non - statutory ground for the

continuance of a value adjustment board hearing if the taxpayer

does not re ceive the property appraiser’s evidence five or more

calendar days before the scheduled hearing does not enlarge,

modify, alter or contravene the statutes being implemented by

the proposed rule.

36. The proposed rule requiring that the property

appraise r mail his evidence to the taxpayer unless otherwise

agreed does not enlarge, modify, or contravene the statute being

implemented.

37. Petitioners’ challenges to the proposed rule based on

Section 120.52(8)(c), Florida Statutes, are rejected.

38. This is a difficult statute to implement because of

the short time frame involved, but it is clear from the statute

that the legislature intended to provide the taxpayer with

adequate time to analyze the property appraiser's evidence in an

effort to level the p laying field in hearings before value

adjustment boards. DOR has appropriately considered input from

all interested parties, determined the competing interests of

those parties, and balanced those competing interests in a fair

manner that is consistent wi th the statutes and legislative

intent. “A capricious action is one which is taken without

thought or reason or rationality. An arbitrary decision is one

not supported by facts or logic, or despotic.” Board of

Trustees of the Internal Improvement Trust Fund v. Levy , 656

So. 2d 1359 (Fla. 1st DCA 1995). The proposed rule is not

capricious or arbitrary.

39. Petitioners’ challenges to the proposed rule based on

Section 120.52(8)(e), Florida Statutes, is rejected.

FINAL ORDER

Based upon the foregoing F indings of Fact and Conclusions

of Law it is ORDERED that the subject challenges to proposed

Rule 12D - 10.0044 are DENIED.

DONE AND ORDERED this 1st day of March, 2004, in

Tallahassee, Leon County, Florida.

S

___________________ ________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Pa rkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of March, 2004.

ENDNOTES

1/ Throughout this Final Order, Petitioner Robbins will be

referred to as Mr. Robbins; Petitioner Value Adjustment Board

will be referred to as the VAB; and Respondent Department of

Revenue will be referred to as DOR. Mr. Robbins and the VAB

will be referred to as Petitioners when the reference is to both

of them.

2/ As used in this Final Order, all citations to statut es are

to Florida Statutes (2003).

3/ Section 194.011(1), Florida Statutes, provides as follows:

(1) Each taxpayer whose property is

subject to real or tangible personal ad

valorem taxes shall be notified of the

assessment of each taxable item of s uch

property, as provided in s. 200.069.

4/ In addition to valuation disputes, value adjustment boards

hear other cases. Section 194.032(1)(a), Florida Statutes,

provides that a value adjustment board shall meet for the

following purposes:

1. Hearin g petitions relating to

assessments filed pursuant to s. 194.011(3).

2. Hearing complaints relating to

homestead exemptions as provided for under

s. 196.151.

3. Hearing appeals from exemptions

denied, or disputes arising from exemptions

granted, upo n the filing of exemption

applications under s. 196.011.

4. Hearing appeals concerning ad valorem

tax deferrals and classifications.

5/ For ease of reference, the information a taxpayer is

required to provide to a property appraiser will be referred to

as the taxpayer's evidence, and the information the property

appraiser is required to deliver to a taxpayer will be referred

to as the property appraiser's evidence.

6/ Section 194.032(2), Florida Statutes, provides, in pertinent

part, as follows:

(2) The clerk of the governing body of

the county shall prepare a schedule of

appearances before the board based on

petitions timely filed with him or her. The

clerk shall notify each petitioner of the

scheduled time of his or her appearance no

less t han 20 calendar days prior to the day

of such scheduled appearance. Upon receipt

of this notification, the petitioner shall

have the right to reschedule the hearing a

single time by submitting to the clerk of

the governing body of the county a written

req uest to reschedule, no less than 5

calendar days before the day of the

originally scheduled hearing. A copy of the

property record card containing relevant

information used in computing the taxpayer's

current assessment shall be included with

such notice, if said card was requested by

the taxpayer. Such request shall be made by

checking an appropriate box on the petition

form. No petitioner shall be required to

wait for more than 4 hours from the

scheduled time; and, if his or her petition

is not heard i n that time, the petitioner

may, at his or her option, report to the

chairperson of the meeting that he or she

intends to leave; and, if he or she is not

heard immediately, the petitioner's

administrative remedies will be deemed to be

exhausted, and he or she may seek further

relief as he or she deems appropriate. …

7/ As used in this Final Order, reference to a certain number

of "business days" will exclude a Saturday, Sunday, or legal

holiday. Reference to "calendar days" will include a Saturday,

Sund ay, or legal holiday.

8/ Florida Administrative Code Rule 12D - 10.004(2) provides as

follows:

(2) The clerk of the board shall prepare

a schedule of appearances before the board

based on timely filed petitions. The clerk

shall notify each petitione r of the

scheduled time of appearance. The notice

shall be in writing, and delivered by

regular or certified U.S. mail or personal

delivery so that the notice shall be

received by the taxpayer no less than twenty

(20) calendar days prior to the day of suc h

scheduled appearance. The clerk will have

prima facie [sic] complied with the

requirements of this section if the notice

was deposited in the U.S. mail twenty - five

(25) days prior to the day of such scheduled

appearance.

9/ DOR interprets the eviden ce exchange provision in the

statute to require a property appraiser to provide to the

taxpayer all evidence, including any rebuttal evidence, the

property appraiser intends to use at the hearing. Mr. Keller,

on behalf of DOR, opined that the hearing shou ld be rescheduled

in a case where such an exchange cannot be timely made.

10/ Section 194.034(1)(d), Florida Statutes, provides as

follows:

(d) Notwithstanding the provisions of

this subsection, no petitioner may present

for consideration, nor may a board or

special master accept for consideration,

testimony or other evidentiary materials

that were requested of the petitioner in

writing by the property appraiser of which

the petitioner had knowledge and denied to

the property appraiser.

COPIES FU RNISHED :

Martha F. Barrera, Esquire

Mark T. Aliff, Esquire

Office of the Attorney General

Revenue Litigation Section

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Thomas W. Logue, Esquire

Miami - Dade County Attorney

111 Northwest First Stre et

Miami, Florida 33128 - 1993

Steven A. Schultz, Esquire

Brooks, Hermelee, Geffin

25 Southeast Second Street, Suite 1135

Miami, Florida 33131

Franz E. Dorn, Esquire

Florida Department of Revenue

Office of the General Counsel

Post Office Box 6668

Tallah assee, Florida 32314 - 6668

James Zingale, Executive Director

Department of Revenue

104 Carlton Building

Tallahassee, Florida 32399 - 0100

Bruce Hoffman, General Counsel

Department of Revenue

204 Carlton Building

Tallahassee, Florida 32399 - 0100

Liz Cloud , Chief

Bureau of Administrative Code

Department of State

The Elliott Building

Tallahassee, Florida 32399 - 0250

Scott Boyd

Executive Director and General Counsel

Joint Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32 399 - 1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original Notice of Appeal with the agency clerk of

the Division of Administrative Hearings and a copy, accompanied

by filing fees prescribed by law, with the District Court of

Appeal, First District, or with th e District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.