STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMERICAN CONTRACT BRIDGE LEAGUE, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1237

)

OFFICE OF THE COMPTROLLER )

and DEPARTMENT OF REVENUE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, at 1:30

1. on February 22, 1977, at 2445 West Flagler Street in Miami, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Paul J. Levine

   Noriega, Bartel, Chopp, Schatz, Levine and Shuford, P.A.

   2100 First Federal Building One Southeast 3rd Avenue Miami, Florida 33131

   
   

   For Respondent: Patricia S. Turner

   Assistant Attorney General Department of Legal Affairs Bloxham Building Tallahassee, Florida 32304

   
   

   ISSUE

   
   

   The issue for determination in this cause is whether petitioner is entitled to a refund in the amount of $6,306.32 paid into the state treasury as sales tax. More specifically, the issue is whether the registration or participation fee charged by petitioner to its members at the 1975 summer national bridge tournament is taxable as an "admission" under Florida Statutes 212.02(16) and 212.04.

   
   

   FINDINGS OF FACT

   
   

   1. Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

      
      

   2. The petitioner, the American Contract Bridge League, Inc., is a nonprofit corporation incorporated under the laws of New York in 1938. Its membership is approximately 200,000, representing areas all over the North American continent. Its purposes include educational, cultural and charitable

      pursuits. Among other things, petitioner annually sponsors three national tournaments in various areas of the United States.

      
      

   3. In August of 1975, petitioner held its summer national tournament at the Americana Hotel in Bal Harbour, Dade County, Florida. Over 1,000 tables for approximately 5,500 members were in operation for the nine-day event. Many of these 5,500 members played in two or more events. In order to participate in each event, the member was required to pay a registration fee ranging from $3.00 to $4.50. No sales tax was included by petitioner in its registration fee. While spectators at the tournament were permitted, it was not intended as a spectator event. No special provision was made for the seating of spectators, whose number rarely exceeded one hundred and who were composed primarily of relatives or friends of the actual players or participants. No admission charges were made to spectators.

      
      

   4. On previous occasions, petitioner has held bridge events in Florida. On no such occasion has the State of Florida attempted to assess the sales tax on petitioner's registration or participation fees. No other state in which petitioner has held its tournaments has assessed petitioner for sales or other taxes on this fee.

      
      

   5. The respondent Department of Revenue informed petitioner that the registration fees collected at the 1975 summer national tournament constituted a taxable event, subject to the Florida sales tax, and petitioner, under protest, forwarded a check in the amount of $6,306.32. Thereafter, petitioner applied for a refund pursuant to the provisions of F.S. 215.26. The Comptroller denied the refund application.

      
      

      CONCLUSIONS OF LAW

      
      

   6. As noted above, the issue in this case is whether the fee charged by petitioner to its members to enable them to participate in the activity of playing bridge constitutes a taxable event. Petitioner contends that a registration or entrance fee at a bridge tournament cannot be construed as an "admission" as defined by F.S. 212.02(16), which confines itself to either sporting events or purely spectator events. It is argued that a nonathletic, sedentary, mental competition event such as bridge or chess is not taxable under the legal doctrine of inclusio unius est exclusio alterius -- the inclusion of one item excludes the other. On the other hand, respondents argue that the activity of playing bridge is an "amusement, sport or recreation" or "game" within the meaning of F.S. 212.02(16), and further point to F.A.C. Rule 12A- 1.05(4)(i) for their contention that the registration fees are taxable since no admission charge was made to spectators.

      
      

   7. The legislative intent that every person who sells or receives anything of value by way of admissions is exercising a taxable event is declared in F.S.

      212.04. The legislature went on to define "admissions" in F.S. 212.02(16). As pertinent hereto, that section provides:

      
      

      "The term `admissions' means and includes the net sum of money . . . for admitting a person to any place of amusement, sport, or recreation or for the privilege of entering or staying in any place of amusement, sport, or recreation, including but not limited to theaters, outdoor theaters, shows, exhibitions, games, races or any place where

      charge is made by way of sale of tickets, gate charges, seat charges, . . . green fees, participation fees, entrance fees or other fees . . . measured on an admission or entrance . . . in any place where there is any exhibition, entertainment, . . . amusement, sport or recreation, "

      
      

   8. The undersigned Hearing Officer has been made aware of no judicial or attorney general opinion construing the applicability of the above statute to the game of bridge. Nor do the rules and regulations of the Department of Revenue contained in Chapter 12A-1 of the Florida Administrative Code specifically address themselves to sedentary, mental activities such as bridge, chess or the like. It would appear that Rule 12A-1.05(4)(i) would be applicable only if it were determined that the event were taxable at the outset.

      
      

   9. After carefully considering the argument of counsel for the parties, the undersigned concludes that participation, registration or entrance fees charged to those who participated in petitioner's national tournament are subject to the admission tax imposed by Florida. The inclusio unius rule, as well as that rule which provides for the strict construction of taxing statutes, are rules of interpretation to be used when the legislative mandate is unclear. The legislative intent to tax persons who receive anything of value by way of admissions is clearly set forth in F.S. 212.04. The term "admissions" is defined broadly to include money for admitting one to any place of amusement, sport or recreation including but not limited to games. The term is expressly defined to include participation fees and entrance fees. Rule 12A-1.05(4)(i) simply exempts such participation fees from taxation when a charge is made to spectators. There having been no charge made to spectators at the petitioner's tournament, it follows that the participation, entrance or registration fees made to the players is taxable under Florida law.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is recommended that petitioner's request for a refund in the amount of $6,306.32 be denied.

Respectfully submitted and entered this 21st day of March, 1977, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 1977.

COPIES FURNISHED:

Comptroller Gerald Lewis The Capitol

Tallahassee, Florida 32304

Patricia Turner, Esquire Assistant Attorney General Department of Legal Affairs The Bloxham Building Tallahassee, Florida 32304

Paul J. Levine, Esquire 2100 First Federal Building One Southeast 3rd Avenue Miami, Florida 33131

Docket for Case No: 76-001237

Orders for Case No: 76-001237