OPN 92-0077
Nov 16, 1992
Willa A. Fearrington, Esq.
515 North Flagler Drive
Suite 601
West Palm Beach, Florida 33401-4321
RE: Value Adjustment Board; Evidence; Admissibility After
Request by Property Appraiser and Denial by Taxpayer;
Section 194.034(1)(d), Florida Statutes
Rule 12D-10.003(4)(c), F.A.C.
Dear Ms. Fearrington:
This letter will confirm our telephone conversations during the
week of October 5-9, 1992. In those conversations we discussed
the value adjustment board guidelines and procedures for VAB
hearings and the memorandum dated October 1, 1992 by William G.
Capko, Assistant County Attorney, Palm Beach County, Florida.
The only point of issue which you raise with that document is on
page 3 in which the following is stated:
The value adjustment board does not support a 5 working day
evidence rule. If you determine that the petitioner acting
in good faith, has presented evidence at the hearing which
does not require verification and is not prejudicial to the
property appraiser, you may allow such evidence to be
admitted.
You felt that this guideline for special masters infringed upon
the property appraiser's letter which you sent out requesting
all evidence to be produced 5 days prior to the hearing. The
letter did state that if such evidence was not produced prior to
the hearing it would be ineligible for admission at the hearing.
The applicable statute and rule state:
... 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. See section 194.034(1)(d), Florida Statutes.
The rule cited above adds the word "deliberately".
This letter will confirm our discussion that it is the opinion
of this office that the request of the property appraiser in
your letter for such evidence 5 days prior to the hearing would
establish a reasonable time frame which, if met by the
petitioner, would enable such evidence to be admitted at the
hearing. If the 5 day time frame is not met, the evidence would
not be admissible at the hearing if prejudicial to the property
appraiser. You should therefore raise such issue with the
hearing special master upon a petitioner seeking to admit
prejudicial evidence which has not been provided to the property
appraiser a reasonable time prior to the hearing.
Further, the Palm Beach guideline states that if a petitioner
has acted in good faith and not willfully denied evidence to the
property appraiser prior to the hearing, but wishes to submit
evidence at the hearing which is of a nature that would require
investigation or verification by the property appraiser's office
or the presentation of such evidence would be prejudicial to the
property appraiser's office, then the special master may allow
the hearing to be continued and if necessary, rescheduled so
that the property appraiser may review such evidence.
This will confirm that the Department views the statutory and
rule requirement and the requirement stated in your letter that
evidence be presented to the property appraiser prior to the
hearing or it will be ineligible for admission at the hearing to
either require the exclusion of such evidence or in the
alternative the continuation or rescheduling of the hearing to
permit the property appraiser to review such evidence prior to
the hearing.
In order to effectuate this procedure, it is essential that your
office raise the prejudicial nature of such evidence, if any,
that is sought to be admitted by a petitioner in violation of
the statute, the rule or the letter sent by your office.
As we discussed, there may be evidence of a de minimis nature
which may be admitted at the hearing even if not presented to
the property appraiser provided that there is no prejudice
whatsoever to the property appraiser's office by permitting such
evidence to be admitted even though this might be a technical
violation of the statute, the rule and your letter. It is to be
emphasized, however, that this violation would only be of a de
minimis nature where the evidence is de minimis and there would
be no prejudice to the property appraiser's office by admitting
such evidence.
We recognize the property owner who may be unfamiliar with
goings on of the courthouse and his right to be heard.
I hope this adequately explains the position of this office
concerning the impact of the value adjustment board guideline
described. If I may be of any further assistance, please do not
hesitate to contact me.
Sincerely,
Stephen J. Keller
Deputy General Counsel
Office of General Counsel
SJK/bso
cc: William G. Capko, Esq.
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