Magnolia Florida Tax Certificates, LLC, etc. v. Florida Department of Revenue

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-2094
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MAGNOLIA FLORIDA TAX
CERTIFICATES, LLC, a Florida
limited liability company, et al.,
Appellants/Cross-Appellees,
v.
FLORIDA DEPARTMENT OF
REVENUE, et al.,
Appellees/Cross-Appellants.
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On appeal from the Circuit Court for Leon County.
Terry P. Lewis, Judge.
June 22, 2018
PER CURIAM.
In this appeal and cross-appeal from a summary final
judgment, three issues have been raised for our consideration: (1)
whether the trial court erred in entering summary judgment
against Appellants on count II of their complaint challenging the
deposit requirement imposed upon bidders for tax certificates in
Broward, Miami-Dade, and Orange Counties; (2) whether the trial
court erred in entering summary judgment against Appellants on
count III of their complaint challenging the affidavit requirement
imposed upon bidders for tax certificates in Broward County; and
(3) whether the trial court erred in denying a motion to abate the
proceedings until Appellants/Cross-Appellees complied with the
registration requirements of the Fictitious Name Act. We affirm as
to the third issue without further discussion. We also affirm as to
the first and second issues for the reasons that follow.
In challenging the imposition of a separate deposit upon each
of their general partnerships bidding for tax certificates,
Appellants’ initial brief advances the following arguments: (1) the
deposit is unreasonable because it exceeds the amount necessary
to recoup readvertising costs; (2) the deposit is inefficient because
it requires the tax collector’s office to reissue refunds of large sums;
(3) the deposit is contrary to legislative intent because it
discourages open competition and participation in auctions; and
(4) the trial court misinterpreted section 197.432(7), Florida
Statutes, by failing to consider that a third-party surety is
permitted to post a deposit on behalf of bidders that is calculated
based upon a percentage of the bidding group’s expected
purchases. Appellants failed to preserve any of these arguments,
which were not raised below. See Aills v. Boemi, 29 So. 3d 1105,
1109 (Fla. 2010) (holding that the specific legal ground upon which
a claim is based must be raised at trial and a claim different than
that will not be heard on appeal); Sunset Harbour Condo. Ass’n v.
Robbins, 914 So. 2d 925, 928 (Fla. 2005) (holding that an issue
must be presented to the lower court and the specific legal
argument or ground to be argued on appeal must be part of that
presentation if it is to be considered preserved); Adkison v. Morey,
43 Fla. L. Weekly D550 (Fla. 1st DCA Mar. 8, 2018) (holding that
the argument made on appeal was waived because it was never
presented to the trial court). Because we cannot address these
arguments for the first time on appeal, we affirm the summary
judgment against Appellants on count II of their complaint.
In challenging the pre-bidding documentation required by
Broward County insofar as it requires all business entities—as
opposed to natural persons—to provide an affidavit concerning
certain information about the entity, including its name, the type
of entity, its state of origin, and information concerning its
employer identification number (EIN), Appellants assert that such
a requirement is not authorized by section 197.432, Florida
Statutes. However, Broward County is a charter county that has
the power to “enact county ordinances not inconsistent with
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general law.” Art. VIII, § 1(g), Fla. Const. A local government
enactment is inconsistent with state law if it directly conflicts with
a state statute or if the legislature has preempted a particular
subject area. Sarasota Alliance for Fair Elections, Inc. v.
Browning, 28 So. 3d 880, 886 (Fla. 2010). Although section 197.432
provides general procedures for tax certificate sales, it does not
specify how tax collectors are to ascertain the identities of bidders
or set out what information may be requested of bidders.
Accordingly, it cannot be said that the affidavit requirement
imposed in Broward County is inconsistent with any provision of
section 197.432. Moreover, there is nothing in the language of
section 197.432 that expressly or impliedly preempts Broward
County from imposing an affidavit requirement to ascertain or
verify the identity of bidders at tax certificate sales. Accordingly,
the trial court correctly concluded as a matter of law that Broward
County had discretion to impose an affidavit requirement on
bidders in order to carry out its statutory duty to conduct tax
certificate sales.
To the extent Appellants claim that the affidavit requirement
is contrary to legislative intent and discriminates against non-
natural persons, these claims are without merit. There is nothing
in section 197.432 expressing an intent to allow business entities
to use hundreds of thousands of “shell” bidders to gain an unfair
advantage at tax certificate sales. Moreover, Appellants have
failed to demonstrate that the disparate treatment between
natural and non-natural persons is improper. A constitutional
challenge that does not involve a fundamental right or suspect
classification is evaluated under the rational basis test, which
merely requires the existence of a conceivably rational basis for the
enacting governmental body to believe that the challenged
legislation would further a legitimate governmental purpose. WCI
Communities, Inc. v. City of Coral Springs, 885 So. 2d 912, 914
(Fla. 4th DCA 2004). Here, Broward County’s affidavit
requirement helps ensure that all bidders are bona fide business
organizations created under the laws of some state and not sham
entities using names made up for the sole purpose of manipulating
the lottery selection process to resolve tie bids. Requiring each
bidder to identify itself and attest that it did not obtain its EIN for
the purpose of gaining advantage in a tax certificate sale in
contravention of Internal Revenue Service directives is rationally
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related to the county’s legitimate interest in ensuring the fairness
of tax certificate sales. Accordingly, we affirm the summary
judgment entered against Appellants on count III of their
complaint.
AFFIRMED.
LEWIS, ROBERTS, and JAY, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Douglas Manson and William S. Bilenky of Manson Bolves
Donaldson Varn, P.A., Tampa, for Appellants/Cross-Appellees.
John A. Tucker, IV, of Foley & Lardner LLP, Jacksonville; Robert
H. Hosay, James A. McKee, and Benjamin J. Grossman of Foley &
Lardner LLP, Tallahassee, for Appellee Anne M. Gannon, Palm
Beach County Tax Collector.
Vanessa Thomas of Forman, Hanratty, Thomas & Montgomery,
Ocala, for Appellee George Albright, Marion County Tax Collector.
Andrew J. Meyers, Broward County Attorney; Mark A. Journey,
Scott Andron, and Joseph K. Jarone, Assistant County Attorneys,
Fort Lauderdale, for Appellee Broward County.
Douglas C. Spears and Benjamin C. Iseman of Swann Hadley
Stump Dietrich & Spears, P.A., Winter Park, for Appellee Scott
Randolph as Orange County Tax Collector.
Abigail Price-Williams, Miami-Dade County Attorney, and Ileana
Cruz, Assistant County Attorney, Miami, for Appellee/Cross-
Appellant Marcus Saiz De La Mora, Miami-Dade County Tax
Collector.
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Timothy R. Qualls of Young Qualls, P.A., Tallahassee, for
remaining Appellee Tax Collectors.
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