Down On the Florida Keys in Monroe County, Florida, KeysNet.com
- Negotiations over a plea deal for a suspended Keys state law enforcement agent charged with homestead-exemption fraud have fallen through, and now he's set for trial on April 23 in Key West. Following the breakdown in talks, Vince Weiner, 47, demanded a speedy trial and on Thursday, Monroe County Circuit Court Judge Mark Jones set the trial for the Freeman Justice Center.
- The Florida Department of Law Enforcement arrested the Key West-based Weiner, an FDLE agent, last Aug. 17. He's charged with felony grand theft and misdemeanor homestead-exemption fraud.
- Florida homeowners are allowed one homestead exemption, which allows for a property-tax break on their permanent residence. It can be claimed only when the owners live in the house.
- Prosecutors say Weiner bought a Big Pine Key house in 2005, then got assigned to Fort Myers in 2006. While living in Fort Myers, Weiner rented his Keys house out but claimed the homestead exemption, they say.
- The FDLE says Weiner claimed the Big Pine exemption for the tax years 2007 to 2010. As a result, the FDLE says, Weiner received at least $5,918 in tax exemptions to which he was not entitled.
- Weiner had hoped he could cop a plea that would allow him to retain his state police certification. But prosecutors wouldn't go for a misdemeanor plea.
- Weiner was assigned back to the Keys from Fort Myers in May 2010. He has worked in Fort Myers or Key West since becoming an FDLE agent in 1993. He previously was a Florida Highway Patrol trooper.(1)
Source: Trial set for suspended Keys FDLE agent.
(1) If, after Weiner was assigned to Fort Myers (assuming he didn't claim a homestead exemption for another residence in the interim), he had a good faith intention to ultimately move back to his home in Big Pine Key, it would seem unfair that Weiner would not be entitled to keep his tax exemption allowed under Article VII, Section 6 of the Florida Constitution. Certainly, he would have been entitled to maintain the exemption if, rather than renting it out, had he simply kept the home vacant, or even let people live there rent-free.
Further, there are Florida Supreme Court rulings that have allowed for the temporary rental of a homestead where the homeowner was entitled to keep the tax exemption associated with homesteads. See:
- L'Engle v. Forbes, 81 So. 2d 214 (Fla. 1955) (in the context of a member of the armed services who was called away for military service and who intended to return to his home when his military obligation was satisfied; he was deemed not to have involuntarily abandoned his homestead despite the fact that he rented out the home during the entire period of his absence. Accordingly, he was entitled to the homestead exemption for the time he was away in the military);
- City of Jacksonville v. Bailey, 30 So. 2d 529 (Fla. 1947) (holding that homestead was not abandoned where the property owner resided in home for six years; the owner rented the home out during the winter season; and during the course of the rental, left his personal items on the property);
- Poppell v. Padrick, 117 So. 2d 435 (Fla. 2d D.C.A. 1959) (where an intermediate appeals court held that a property owner who rented his home during the winter months, over the course of several years to live with his widowed mother, and maintained his personal property in the homesteaded property did not abandon homestead and was entitled to the property tax benefit);
- Florida Att’y Gen. Op. 058-229 (where the state Attorney General opined that a property owner who rents a home in another county for work purposes did not abandon homestead where property owner had maintained homesteaded address for voter registration and voted in the subject county).
However, subsequent to these court rulings, in 1959 (possibly in an attempt to nullify or otherwise minimize the significance of these court rulings), the legislature slipped a provision into the statute (See 196.061, Florida Statutes: Rental of homestead to constitute abandonment), that specifically states that, in the context of the tax exemption for homesteads, a rental of an entire homestead constitutes an abandonment (the legislature does carve out an exception to this rule for a "member of the Armed Forces of the United States whose service in such forces is the result of a mandatory obligation imposed by the federal Selective Service Act or who volunteers for service as a member of the Armed Forces of the United States", possibly to reflect the fact pattern in the aforementioned case, L'Engle v. Forbes). See, generally, Florida Bar Journal: The Loss of Homestead Through Rental.
Whether Section 196.061 constitutes an improper exercise by the legislature to change the provisions of the Florida Constitution, as interpreted by the then-existing case law, through legislative action has never been addressed by the Florida Supreme Court (keep in mind that the Florida Constitution can only be changed, altered , modified, etc. by constitutional amendment to be voted on by the citizens of the State, not by legislative fiat). Arguably, however, the wording of Article VII, Section 6 of the Florida Constitution is such that it does permit the state legislature some leeway in passing laws to implement the intent of the state Constitution (unlike the constitutional provisions in Article X, Section 4, which deals with the homestead exemption relating to forced sales, lien attachments - where no such leeway is permitted).