KENNETH J. KANIA AND
) IN THE UNITED STATES DISTRICT COURT
DOLORES KANIA ) FOR THE MIDDLE
DISTRICT OF FLORIDA
) TAMPA DIVISION
)
)
)
Plaintiffs, )
)
. vs. )
)
)
DIANE NELSON in her capacity as ) CASE
NO. 8:08-CV-00057-T-17TGW
Tax Collector, Pinellas County, Florida; )
)
JIM SMITH in his capacity as Tax )
Appraiser, Pinellas County, Florida, )
)
PINELLAS COUNTY, FLORIDA, a )
Sub-division of the State, Robert B. )
Stewart, Chairman, Pinellas County )
Board of Commissioners, )
)
NANCY N. BOSTICK, in her capacity as )
Chairperson, Pinellas County School )
Board.
)
Defendants.
COMPLAINT
Plaintiffs KENNETH J. and DOLORES KANIA, hereinafter
Plaintiffs, acting as pro se litigants, are suing defendants because
defendants, in the past and presently, were/are exercising a Power denied them
under the United States Constitution; are enforcing legislation that is in
violation of Plaintiffs’ Rights secured under the United States Constitution;
are in violation of 42 U. S. C. 1983 and are also in violation of both the
spirit and the values upon which the United States Constitution was founded. The
effects of such enforcement have been an unjust, substantial, disproportional,
discriminatory and irreparable financial burden on Plaintiffs. In effect, the
consequences of enforcement of such law has been a shifting of the tax burden,
either intentionally or unintentionally, which benefits defendants and resident
taxpayers, who have a voice in the political process, at the expense of
non-residents, who have no such voice.
JURISDICTION AND
VENUE
- Jurisdiction is conferred on this Court under 28 U. S. C. 1331. Venue lies in the Middle District of Florida, Tampa Division under 28 U. S.
C. 1391(b).
GENERAL
ALLEGATIONS
- Plaintiffs are citizens of the United States and own a
residence in St. Petersburg,
Florida. Plaintiffs have owned, and paid taxes
on such property, since 1979.
Property was co-owned by Plaintiffs and the
mother of Plaintiff Dolores. In 2004
Plaintiffs purchased the mother’s share and
became sole owners. Property is
located at 4910 38th Way South, St. Petersburg, Florida 33711; Condominium
Unit # 508H.
- Florida Law being challenged is Art VII, Sec IV of the
Florida Constitution and its implementing legislation Statute 193.155. Such
law grants a Homestead Exemption (a privilege) of $25,000 to Florida residents. Once this exemption is granted such residents are entitled to a tax cap
(an immunity) of 3%, or the increase in the Consumer Price Index,
whichever is lower, on annual increases in the assessed value of such
property. Plaintiffs, non-residents of Florida and property tax payers
for 29 years, are denied both. The effect, and possibly the intent, of
such law is an invidious, disproportionate, discriminatory, unjust and
unconstitutional tax burden levied on non-residents Plaintiffs to the
benefit of residents.
- For tax years 2006 – 2007 Plaintiffs experienced average
annual assessment increases of 18%. This contrasts with annual increases
of no more than 3% for residents or increases for non-residents 600%
greater than that experienced by residents. Concomitant with such assessment
disparities are corresponding tax payment disparities. Over the years
such disparate treatment takes its toll with Plaintiffs presently paying
property taxes of $4,301 for year 2007 while residents owning equivalent
pieces of property pay only $935. Thus non-resident Plaintiffs pay a
substantial and disproportionate tax premium simply because they’re
non-residents.
- In a study commissioned by the Florida Department of
Business and Professional Regulation, presented on 11-1-1993, defendants were made aware of the likelihood that substantial disparities were likely to
result from the enactment of such legislation; that there would be a shift
in the tax burden onto non-residents to the benefit of residents. Such
study also made defendants aware of California’s tax cap on increases in
assessed value of 2%, and that in California such cap applied equally to
all property types unlike Florida Law which applies only to Florida
Homestead property. Thus while California acted in conformity with the Constitutional
provision of ‘equal protection’, as well as other provisions, Florida did not.
- To exacerbate matters non-resident Plaintiffs reside in Florida only a fraction of the year. Thus while paying disproportionately more in taxes
they receive disproportionately less in services.
- The Supreme Court of the United States has established, on
numerous occasions, a set of standards by which states are to treat
non-residents vis a vis residents. These standards are ‘a norm of
comity’, ‘a rough parity’ or ‘substantial equality’. This is what the
United States Constitution requires. The named defendants have taken an
oath to uphold this Constitution. They failed to do so.
- As a result of their failure to follow such norms a
feeling of angst and hostility has been created in Plaintiffs and other
non-residents. Such effects are evidenced by the numerous articles
critical of such discriminatory and unjust laws. The enforcement of such
law also has a negative effect on interstate commerce because non-residents
face a substantial and disproportionately higher tax burden when they
consider buying property in Florida.
- The enforcement of Florida Law is also in violation of
Article IV, Sec II of the United States Constitution. The Rights secured
under this Article are of special import because such Rights were the only
Rights secured under both the Articles of Confederation and our present
Constitution. This Constitutional provision places all states under a
duty. When any of the several states grants a ‘privilege’ or an ‘immunity’
to any of its citizens it has no option with respect to treatment of
non-residents. It falls under a duty to provide the same, or at a minimum
to comply with the standards enumerated in 7 above, to the citizens of
each state. The language is very clear. ‘The citizens of each state
shall be entitled to all privileges and immunities granted to citizens of
the several states.’ ‘Entitled to’ means a Right; ‘all’ is
self-explanatory. Thus in becoming a privilege or immunity to a citizen
of any of the several states, such privilege or immunity becomes, under
the United States Constitution, a Right to the citizens of each state. The
enforcement of Florida Law at point denies to Plaintiffs such Rights.
- Plaintiffs understand the word ‘all’ under Art IV, Sec II
is not an absolute. Also that the U. S. Supreme Court standards above do
not require absolute equality of treatment of residents vis a vis
non-residents. It is, however, like the word ‘no’ in the 1st
Amendment. It thus follows that when a charge of violation is made under
either the lst Amendment or Art IV, Sec II a higher burden of
justification is required of those accused of abridging such Rights. Defendants
have provided no such justification.
- No ‘compelling state interest’, or ‘peculiar evil’ created
by non-resident Plaintiffs has been offered as justification for the
enforcement of the discriminatory and unjust law at point.
- From the violation of the Rights secured under the 4th
Article it follows that the 2nd Clause of the 10th
Amendment is also being violated. A local official has no power to
abridge a Right secured under the United States Constitution.
- The very reason for the inclusion of Article IV in both
the Articles of Confederation and our present Constitution was to prevent
states from doing exactly what is being done in Florida. To ‘form a more
perfect union’ it was necessary to establish the ‘norm of comity’ that the
United States Supreme Court has recognized.
- In effect, Florida Law enables the defendants to avoid
going to the people for funding by imposing higher taxes on non-residents
who have no voice in the political process. This violates due process,
both procedural and substantive, and also fails to factor into enforcement
the equal respect and treatment all United States Citizens are entitled
to. Such enforcement of Florida Law is thus contrary to both the United
States Constitution as adopted, as it stands today, and to the values upon
which our Country was and is based.
- The named Defendants, either directly or indirectly, are
enforcing Article VII, Sec IV of the Florida Constitution and its
implementing legislation, Statue 193.155. Such enforcement results in an
unconstitutional abuse of power along with the denial of Rights secured under
the United States Constitution. The effect has been the imposition of an
unjust, disproportional, discriminatory, illegal and irreparable financial
burden on Plaintiffs.
RELIEF SOUGHT
- Plaintiffs seek immediate injunctive relief to cease
enforcement of the unjust and
Unconstitutional laws which have
resulted in substantial and irreparable financial harm;
- A declaration by the Court that Florida law at point is in
violation of the United
States Constitution and is thus
‘notwithstanding’, or void;
18. That equitable restitution be made to Plaintiffs
for all years Plaintiffs owned their
Florida property and were denied the Privilege
of the Homestead Exemption and
the Tax Cap Immunity they were ‘entitled to’.
19. Such equitable restitution will be in the amount
of the difference between what
Plaintiffs actually paid in taxes and what they
would have paid had they been
granted the Privilege and Immunity they were
‘entitled to’. This would exclude
tax year 2005 because property was reassessed
due to the change in ownership
mentioned in 2 above.
20. That a reasonable interest rate be applied to such
difference and compounded
thru year 2007;
21. That defendants pay all reasonable Court costs
associated with this suit;
22. That the Court award punitive damages, in an
amount it deems reasonable, for the
violation of Plaintiffs’ constitutional Rights
and the irreparable financial harm
Plaintiffs incurred.
.
KENNETH J. KANIA &
DOLORES KANIA,
PLAINTIFFS
_____________________________
_____________________________
Kenneth J. and
Dolores Kania
(pro se litigants)
8 South 171 Grant Street
Darien, Illinois 60561
(630) 533-3718
(630) 531-3718
(630) 963-3718
e-mail
whatislaw@hotmail.com