STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GREYHOUND LINES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 81-2300

)

DEPARTMENT OF BANKING AND )

FINANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for administrative hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings on July 16, 1982, in Tallahassee, Florida.

APPEARANCES

For Petitioner: John H. Wilbur, Esquire

1700 Barnett Bank Building Post Office Box 58 Jacksonville, Florida 32201

For Respondent: John Browdy, III, Esquire

Assistant Attorney General Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301

This proceeding involves a petition filed by Greyhound Lines, Inc. whereby it seeks to obtain a refund of "cab card" fees and road taxes paid to the Florida Public Service Commission for the 1980 road tax collection year. The road taxes and cab card fees were due on February 1, 1980, for the year that expired January 31, 1981. During the 1980 year, and specifically, effective July 1, 1980, the motor carrier industry, including Greyhound Lines, Inc., was totally deregulated by the "Sunset" provision of Chapter 76-168, Laws of Florida, whereby the Legislature failed to reenact Chapter 323, Florida Statutes, thus effectively repealing the entire body of motor carrier regulatory law by the "Sunset deadline" of June 30, 1980.

During the course of this proceeding, Greyhound elected to amend its petition whereby it only seeks a refund of those cab card fees and road taxes on a pro rata basis, representing the portions of the 1980 tax year after July 1 and ending January 31, 1981, for which it contends it paid for regulatory and enforcement services by the Public Service Commission. It essentially contends that it paid, through its road tax and cab card fee contributions, for

regulatory and enforcement protection and services by the Commission for the entire year ending January 31, 1981, and did not get the benefit of its payments after the motor carrier industry was deregulated, effective July 1, 1980, accordingly seeks seven-twelfths of its contributions in road taxes and cab card fees for that tax year.

At the hearing the Petitioner presented one witness and ten exhibits, all of which were admitted into evidence. The Respondent presented no witnesses and presented Respondent's Exhibit A, consisting of an audit report of the Florida Public Service Commission dated July 20, 1981, which was admitted into evidence. At the conclusion of the hearing, the parties exercised their right to file proposed findings of fact and conclusions of law, which were timely filed, and waived the requirements of Rule 28-5.402, Florida Administrative Code.

All proposed findings of fact and conclusions of law have been considered herein. To the extent that those proposed findings of fact and conclusions of law are consistent with the Findings of Fact and Conclusions of Law made herein, they are accepted; to the extent that they are inconsistent with the Findings and Conclusions made herein, they are deemed not supported by competent, substantial evidence, not material to this proceeding, not creditable and are rejected.

The issue in this proceeding, as narrowed by agreement of the parties immediately prior to the hearing, concerns whether or not Greyhound Lines, Inc., is entitled to a refund of seven-twelfths of the road tax moneys and cab card fees paid to the Florida Public Service Commission for the tax year beginning February 1, 1980, and ending January 31, 1981, representing the seven months ensuing of that tax year from July 1, 1980.

FINDINGS OF FACT

1. The Petitioner, Greyhound Lines, Inc., operated as a motor carrier throughout the State of Florida prior to June 30, 1980. Greyhound provided regular route passenger service, sightseeing services, charter operations, tours and express package service. Prior to June 30, 1980, Greyhound, regulated by the Florida Public Service Commission, held Certificate of Public Convenience and Necessity #26. On or before June 30, 1980, the Florida Public Service Commission adopted various rules and regulations regulating motor carriage, including Rule 25-5.14, Florida Administrative Code, related to and pursuant to Chapter 323.22, requiring payment of cab card fees and road taxes by regulated motor carriers including Greyhound. Chapter 323 became invalid by operation of law on July 1, 1980, the subject rule was declared invalid by an Order of the Division of Administrative Hearings in Aero Mayflower Transit Company, Inc., et al., vs. State of Florida Public Service Commission and The Comptroller of the State of Florida, DOAH Case Number 82-131R.

   
   

2. Under the Commission's procedures pursuant to Chapter 323, Florida Statutes, and Chapter 25-5, Florida Administrative Code, Greyhound was sent instructions each year (Exhibit 1) together with an application form (Exhibit 2) from the Transportation Section of the Public Service Commission. These instructions and applications were used to file for new cab card identifying devices for vehicles and for payment of road taxes each year. Such was the procedure for the tax year beginning February 1, 1980, and ending January 31, 1981.

   
   

3. Pursuant to the Commission's rules and Chapter 323, Greyhound was required to pay $8 per bus for each bus used in intrastate carriage in the State

   of Florida. In return for that $8.00, Greyhound received a "cab card" to be retained aboard the bus as an identifying device for Public Service Commission enforcement purposes. See Exhibit 5. Road taxes were required to be paid for each Greyhound bus in operation in intrastate carriage which had a capacity of over 21 passengers. The road tax for each bus was in the amount of $100. A road tax identification stamp or device was provided for each bus upon payment of this tax, which evidenced payment of the tax for purposes of law enforcement personnel viewing buses in the field.

   
   

4. In the late fall of 1979, Greyhound received the subject Public Service Commission application and instruction forms and accordingly purchased cab cards for its buses and paid road taxes for those buses for the ensuing tax year at various times beginning October, 1979 through January, 1980. The buses which were licensed in Florida for the 1980 tax year (and its other buses) also operated in Greyhound pools of buses throughout the United States, therefore Greyhound, by necessity, had to purchase cab cards and pay road taxes in advance of the February 1, 1980, deadline to allow sufficient time to locate each bus and thus legally qualify it for operation in Florida prior to its operating in Florida on or after February 1, 1980. Pursuant to the Commission's rules, Greyhound was required to assign each cab card and road tax identification decal to a specific bus, retain these on that bus and provide information of this to the Commission on a particular form for its records.

   
   

5. On or before February 1, 1980, the beginning of the subject tax year, Greyhound paid the following amounts on the following dates:

   
   

   DATE AMOUNT

   
   

   October 5, 1979 $ 12,636.00 [For 1980 road tax decals on 117 buses.]

   
   

   November 7, 1979 134,244.00

   [For registration of 1,243 buses for the 1980 tax year.]

   
   

   December 4, 1979 7,020.00

   [For 1980 registration of 65 buses.]

   
   

   January 10, 1980 2,376.00

   [For registration of 22 buses for tax year 1980.]

   
   

   Thus, the total amount paid by Greyhound for the tax year 1980 amounted to

   $156,276.00. Of this total amount, there was the sum of $11,576.00 paid for cab card fees at $8.00 per vehicle. Greyhound also paid for the tax year 1980 the amount of $144,700.00 which represented the road tax fees at $100 per bus.

   
   

6. Greyhound was required to have road tax decals and cab cards aboard the buses after February 1, 1980, evidencing payment of the fees and taxes involved. If it did not do so the Commission, through its duly authorized investigators, would issue citations to Greyhound for failure to pay tax or to properly identify vehicles and could initiate penalty proceedings.

   
   

7. The Respondent, through use of Exhibit A, established that an Auto Transportation Road Tax Clearing Fund was used by the Public Service Commission to account for the collection of road taxes assessed motor carriers, pursuant to Section 323.15, Florida Statutes, for the use of the public highways. Road tax moneys were transmitted to the State Treasury for the credit of the State's General Revenue Fund as required by Sections 215.20 and 215.22(24), Florida

   Statutes. Other portions of those receipts were transferred to the Public Service Commission's Regulatory Trust Fund and the Revenue Sharing Trust Funds for municipalities and counties as provided by Section 232.16, Florida Statutes. These distributions were made by the State Comptroller based on information provided by the Commission during the 1979-1980 fiscal year. The fourth-quarter receipts for that fiscal year, however, were not distributed because of the repeal of Chapter 323, Florida Statutes, by Chapter 76-168, Section 3(2)(h), Laws of Florida, 1976, as amended by Chapter 77-457, Section 1(3)(h), Laws of Florida (1977). Distribution of those fourth-quarter receipts is pending a legal determination regarding all motor carrier requests for refunds of fees and taxes for the calendar year 1980.

   
   

8. Payments for cab cards and payments of road tax were deposited by the Public Service Commission into the Regulatory Trust Fund, general revenue, or revenue sharing trust funds pursuant to Chapter 323, Florida Statutes (1979). Upon receipt of the payments, with the proper application, the Public Service Commission issued and sent the number of cab cards paid for to the Petitioner. Each cab card specified an expiration date of February 1, 1981. The payment of road taxes was evidenced by the sending of road tax decals by the Public Service Commission to the Petitioner for each vehicle for which such road tax was paid. These decals also specified an expiration date of February 1, 1981. A motor carrier regulatory program of Public Service Commission was administered by the Transportation Section. The operation of this section was paid for out of the regulatory trust fund established under Section 350.78, Florida Statutes (1979). The major functions of this section involved enforcement efforts in the field to ensure that only certificated motor carriers were providing intrastate carriage and that those motor carriers operated in the territory, on the routes, and hauled the commodities or types of passengers which they were authorized to transport. Regulatory functions and enforcement functions also included field inspections of motor vehicles for safety purposes; field analysis of the adequacy of motor carrier service to shippers; verifying registration of ICC certificated carriers and verifying and updating records relative to evidence of insurance by motor carriers, including the Petitioner. Finally, investigations were routinely conducted attendant to new requests for operating authority and certificates of public convenience and necessity by new motor carriers or those seeking to extend their area of operations. The moneys paid into the Regulatory Trust Fund were commingled and were lawfully expended without specific identification of the source of the funds.

   
   

9. The road taxes collected pursuant to Section 323.15, Florida Statutes (1979), were deposited pursuant to Section 323.16, Florida Statutes (1979), in the State Treasury credited in the amount of 35 percent deposited in the Regulatory Trust Fund for use by the Commission in the administration of its statutory responsibilities; 2 percent credited to the Revenue Sharing Trust Fund for municipalities; and the remainder of the funds placed in the State Treasury to the credit of the Revenue Sharing Trust Fund for counties. All moneys for cab card fees were deposited in the Florida Public Service Commission Regulatory Trust Fund pursuant to Section 323.011(11), Florida Statutes (1979).

   
   

10. The Petitioner timely applied for a refund of the payments made to the Public Service Commission pursuant to Chapter 323, Florida Statutes (1979), for the 1980 cycle or "tax year," as follows: seven-twelfths of amounts paid for cab cards and seven-twelfths of amounts paid for road taxes.

    
    

    CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Subsection 120.57(1), Florida Statutes; Chapter 323, Florida Statutes; and Section 215.26, Florida Statutes.

    
    

12. The Petitioner has made a request for a refund related to payments for cab card fees and road taxes for the period February 1, 1980, through January 31, 1981, paid to the Florida Public Service Commission and pursuant to Chapter 323, Florida Statutes (1979). These claims are timely. See Subsection 215.26(2), Florida Statutes (1981).

    
    

13. The regulatory scheme by which these funds were collected is set forth in Chapter 323, Florida Statutes. That chapter had been ear-marked for repeal on June 30, 1980, by legislation enacted in 1976, the so-called "Sunset Act." That act, Chapter 76-168, Laws of Florida, as amended, would result in the automatic demise of regulation of all motor carriers within Florida if the motor carrier regulatory statute was not reenacted in some form on or before June 30, 1980. Since the motor carrier act, Chapter 323, was allowed to "Sunset" effective June 30, 1980, the Petitioner maintains that although it may have been appropriate for the Public Service Commission to collect road taxes and cab card fees for that portion of the Public Service Commission cycle or tax year, February 1, 1980, through June 30, 1980, that that portion of those fees collected, or seven-twelfths of them, representing the portions of that year subsequent to July 1, 1980, should not be retained by the Respondent. The rationale for the collection of the taxes and fees, the regulation and enforcement of the motor carrier act with its attendent responsibilities and protections vis-a-vis the Public Service Commission and its regulated motor carriers, no longer existed. Although the demise of the motor carrier act did occur on June 30, 1980, Chapter 323, Florida Statutes, remained in effect until that repeal date and the Public Service Commission was entitled to and was required to comply with its conditions until the point of repeal. The Public Service Commission was not charged with the task of attempting to somehow anticipate a change in the terms and conditions of motor carrier regulation or to modify on its own the terms and conditions set forth in Chapter 323, Florida Statutes, in contemplation of repeal. The possibility was presented, until the final effective date related to that law, that a reenactment would occur leaving the Public Service Commission in the same posture as they had been in the last full collection year of 1979. See Alterman Transport Lines, Inc. vs. State, 405 So.2d 456 (Fla. 1st DCA 1981). Thus, the fact that the collection of cab card fees and road taxes as no longer authorized after June 30, 1980, is not a sufficient basis, merely because the Public Service Commission labeled them as "annual collection," to entitle the Petitioner to a 100 percent refund of all moneys paid for the year February 1, 1980, through January 31, 1981, nor does the Petitioner seek such by its amended petition, rather it seeks a seven- twelfth pro rata refund of road taxes and cab card fees paid for that year.

    
    

14. The Petitioner in seeking a refund of road taxes and cab card fees for the subject period relies on Subsection 215.26(1), Florida Statutes (1981), as the underlying basis of the refund request. 1/ The road taxes were collected from the Petitioner under authority of Section 323.15, Florida Statutes (1979). The reason for the imposition and the collection of road taxes is set forth in Section 323.25, Florida Statutes (1979), which provides:

    
    

    Taxes deemed compensatory. --

    All road taxes prescribed by this chapter and all such taxes imposed on motor carriers using the public highways in the transportation of persons or property for compensation shall be

    deemed to be compensatory for the use of the public highways of this state by motor carriers taxed under the provisions of this part and as fair contribution to the cost of constructing and maintaining the public highways of this state and the administration and enforcement of this part and all regulations and restrictions imposed hereby and authorized to be imposed by the commission are declared to be for the purpose of conservation of the state's property and in the interest of safety in the use of its highways.

    
    

    The road taxes are thus a charge directly related to the use by the motor carriers of the highways of this state and related to the construction and maintenance of those highways as well as the administration and enforcement of the regulatory scheme of Chapter 323, Florida Statutes (1979). The moneys collected through the imposition of road tax were disbursed as prescribed in Section 323.16, Florida Statutes (1979) which provides as follows:

    
    

    Disposition of moneys collected. -- The commission shall keep a separate account of all moneys collected under s. 323.15, and said moneys shall be placed in the State Treasury to be credited as follows:

    1. Thirty-five percent of such funds shall be deposited in the Florida Public Service Regulatory Trust Fund, as created by s. 350.78, for use by the commission in the

       administration of this part.

    2. Two percent of such funds shall be credited to the Revenue Sharing Trust Fund for municipalities.

    3. The remainder of such funds shall be placed in the State Treasury to the credit of the Revenue Sharing Trust Fund for counties, subject to distribution as provided in this act.

       
       

15. That portion of the disbursements related to the question of regulation of motor carriers by the Commission was to be used by the Commission for that purpose and its other related functions and duties required by Section 350.78, Florida Statutes (1979). The remaining portion of the road taxes collected were placed in a separate trust fund as delineated above for the benefit of municipalities and counties in the State of Florida.

    
    

16. The evidence regarding the purposes of the collection of the road tax and its placement, use and the manner of disbursement leads to the conclusion that the increment placed in the Florida Public Service Commission's Regulatory Trust Funds was directly related to the costs of regulation and enforcement of the regulatory scheme embodied in Chapter 323 and designed to defray the Commission's cost involved in regulation of motor carriers. Those funds allocated to the trust funds for the use and benefit of municipalities and counties were in a nature of a tax related to the use, construction and maintenance of the State's public highways, a use or purpose which transcends and is broader in scope than the purpose ascribable to those portions of the funds directly related to the defrayment of regulatory costs which were

    deposited in the Commissions trust fund. This determination is in accord with Bateman vs. City of Winter Park, 37 So.2d 362 (Fla. 1948), which described a tax as being a type of fee assessment and collection in which a business entity pays for the privilege of doing business without regard to any specific conditions or requirements related to its privilege of doing business. In effect, when a business pays such a fee and there are conditions or requirements regarding its entry into the business and the manner in which it operates its business, in effect, the former transportation regulatory scheme conducted and enforced by the Public Service Commission, the fee charged is more in the nature of a license fee designed to defray the costs of conducting that regulatory scheme, service or effort. See the Recommended Order of the Division of Administrative Hearings in Aero Mayflower Transit Co., Inc., et al. v. State of Florida, Office of the Comptroller, DOAH Case Number 81-2272.

    
    

17. The effect of such a division of these funds, in keeping with the compensatory scheme outlined in Chapter 323, Florida Statutes, means that those road tax funds distributed to the municipal and county trusts are in a nature of a general revenue producing measure. They are subject, as such, to utilization by the counties and municipalities from the point or time of collection and assignment to the Petitioner's account throughout the collection cycle, November 1, 1979,through January 31, 1980, which is related to the tax year, February 1, 1980,through January 31, 1981. Therefore, when the portions of the tax funds were placed in the municipal and county revenue sharing trusts, the beneficiaries of those funds, the municipalities and counties, were entitled to use them from the time of collection forward in their total amounts and thus they were irrevocably committed to those municipal and county uses and purposes from the date of collection. In other words, they are a one time payment, due in its entirety, on the date of collection, for the right to use and to have maintained the public highways of Florida for an entire year and were not related to any entitlement that the Petitioner had to a full year's administration and enforcement of the regulatory scheme of Chapter 323 by the Public Service Commission. Since they were thus a once per year general revenue producing measure subject to use by the cities and counties from the point of collection forward, those portions of the road tax collected and disbursed to the municipal and county revenue sharing trusts are not dependent upon the continued existence for the entire tax year of motor carrier regulation embodied in Chapter 323. Thus, they did not become subject to refund to the Petitioner upon the demise of motor carrier regulation on June 30, 1980.

    
    

18. Those road tax collections for the period in question which were deposited in the Public Service Commission's Regulatory Trust Fund are, however, in the nature of a license fee collection designed to defray the cost of a full year's regulation, administration and enforcement of the motor carrier act in its regulatory scheme by the Public Service Commission, and the Petitioner is entitled to a pro rata refund of their payments of road tax corresponding time period to that when the administration and enforcement for which they paid no longer existed. The Petitioner, having paid for a full year's regulation related to the ongoing efforts of administration and enforcement by the Commission was entitled to a full year's administration and enforcement. In the absence of that full performance, the Petitioner is entitled to be refunded a pro rata share of the moneys paid. Specifically, the Petitioner is entitled to a refund of seven-twelfths of the 35 percent of the road tax contributions which were paid into the Florida Public Service Commission's Regulatory Trust Fund representing the months of July 1, 1980, through January 31, 1981, during which time Chapter 323, Florida Statutes (1979), stood repealed and no further regulation pursuant to that authority and for which the Petitioner paid with 35 percent of its road taxes was taking place.

    
    

19. With regard to the Petitioner's claim for a refund related to payments of cab card fees, Section 323.22, Florida Statutes (1979), calls for the registration and identification of motor vehicles operated by the various motor carriers and allowed the Commission to prescribe identifying devices (cab cards). Those devices were to be issued upon the payment of a fee in keeping with Section 323.011, Florida Statutes. Subsection 323.011(11), Florida Statutes (1979), prescribes the fee spoken of when it requires the payment of a

    $8.00 fee with each application for a cab card issued pursuant to Section 323.22, Florida Statutes (1979). These fees were deposited in the Florida Public Service Commission's Regulatory Trust Fund. Section 350.78, Florida Statutes (1979).

    
    

20. The Public Service Commission enacted Rule 25-5.14, Florida Administrative Code, which, although putatively enacted pursuant to the regulatory scheme regarding cab cards contained in Sections 323.22 and 323.011, actually required an annual fee collection or cab card "renewal fee" as opposed to a one time fee collection to be made with each application for a cab card. As a result of this dichotomy the rule was held to be invalid through a Final Order entered in Aero Mayflower Transit Company, Inc., et al. vs. State of Florida Public Service Commission and The Comptroller of the State of Florida, DOAH Case Number 82-131R, since the rule went beyond the delegated authority contained in the statutory provisions for cab cards which only allowed a one time fee collection when an initial cab card application was filed.

    
    

21. Thus, to the extent that any annual, renewal or second time fees related to cab cards or identification devices were charged and collected for the year February 1, 1980,through January 31, 1981, were being collected for a second year in sequence and were not related to an initial cab card application for a particular vehicle or vehicles, then those fees cannot be considered to be initial fees for purposes of the above two statutory sections for the period February 1, 1980,through January 31, 1981, and therefore should be refunded. In contrast, those cab card fees which were initially collected for the first time for the period February 1, 1980,through January 31, 1981 (i.e., for new vehicles added to the fleet or to be qualified for the first time to operate in the State of Florida), are not subject to refund, in that this fee collection was for the ministerial purpose of identifying given equipment being put into operation by the Petitioner. The initial cab card fees for the year February 1, 1980, through January 31, 1981, were, in actuality, "earned" upon the payment of the fee and represented an initial charge reasonably related to the cost of the ministerial function of registering and identifying motor vehicles authorized for operation in the state pursuant to Chapter 323, Florida Statutes. These initial cab card fees so related to proper qualification and identification of the Petitioner's vehicles starting operations in the State of Florida are properly retained by the Commission as reasonable costs related to those then- required ministerial acts. See Aero Messenger Service, Inc., et al., vs. Comptroller, DOAH Case Number 80-1936.

    
    

22. Finally, it should be pointed out that the Conclusions of Law reached thus far assume payment for and issuance of cab cards and payment of road tax (and issuance of road tax decals) for assignment and use by the Petitioner to specific equipment for the period February 1, 1980,through January 31, 1981. It should therefore be pointed out that any cab cards or cab card fees paid and road tax paid subsequent to June 30, 1980, or for issuance of road tax decals or cab cards to be used subsequent to June 30, 1980, should be refunded.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is

RECOMMENDED:

That a Final Order be entered which refunds the Petitioner, on a pro rata basis, seven-twelfths of 35 percent of the road taxes paid by the Petitioner for the year February 1, 1980, through January 31, 1981; and refunds all recurring, second time or renewal fees paid for those identifying devices known as cab cards and identification stamps related to the year February 1, 1980, through January 31, 1981; and refunds all charges related to cab cards or road tax decals issued subsequent to June 30, 1980, or issued prior to July 1, 1980, to be used July 1, 1980, or on a later date.

DONE and ENTERED this 1st day February, 1983, in Tallahassee, Florida.

P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1983.

ENDNOTE

1/ 215.26 Repayment of funds paid into State Treasury through error, etc. --

1. The Comptroller of the state may refund to the person who paid same, or his heirs, personal representatives or assigns, any money paid into the State Treasury which constitute:

   1. An overpayment of any tax, license or account due;

   2. A payment where no tax, license or account is due; and

   3. Any payment made into the State Treasury in error;. . .

COPIES FURNISHED:

John H. Wilbur, Esquire 1700 Barnett Bank Building Post Office Box 58 Jacksonville, Florida 32201

John Browdy, III, Esquire Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301

The Honorable Gerald Lewis, Comptroller Department of Banking and Finance

The Capitol

Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

=================================================================

COMPTROLLER STATE OF FLORIDA

GREYHOUND LINES, INC.,

Petitioner, Administrative Proceeding No. 83-14-DOA

vs. DOAH Case No. 81-2300

DEPARTMENT OF BANKING AND FINANCE,

Respondent.

/

FINAL ORDER

This matter came before GERALD LEWIS, the Comptroller of the State of Florida and Head of the Department of Banking and Finance (hereinafter referred to as DEPARTMENT) for Final Order upon receipt of the Hearing Officers Recommended Order and the Exceptions filed by the Respondent, together with the record. Upon due consideration thereof, the following FINDINGS OF FACT, CONCLUSIONS OF LAW, and FINAL ORDER are hereby rendered.

FINDINGS OF FACT

1. GREYHOUND LINES, INC. (hereinafter referred to as PETITIONER) sought a refund of monies paid to the State of Florida for cab card fees and road taxes pursuant to the State of Florida for cab card fees and road taxes pursuant to the provisions of Chapter 323, Florida Statutes. On April 30, 1981, the DEPARTMENT issued a Notice of Intent to Deny the request for refund. PETITIONER filed its Petition requesting a formal hearing pursuant to the provisions of Chapter 120, Florida Statutes. The DEPARTMENT granted the Petition and forwarded the same to the Division of Administrative Hearings for formal proceeding. On July 16, 1982, P. Michael Ruff was duly designated as the hearing officer.

   
   

2. During the course of this proceeding, PETITIONER elected to amend its Petition whereby it sought a refund of cab card fees and road taxes on a pro rate basis (i.e., seven-twelfths), which represented the portions of the 1980 tax year after July 1, ending January 31, 1981.

3. A hearing on this matter was held on July 16, 1982. The DEPARTMENT was represented by John Browdy, III, Assistant Attorney General, and PETITIONER was represented by John II. Wilbur, Esquire. Thereafter, Assistant Attorney General Browdy filed a document entitled Respondents Post-Hearing Memorandum of Law, dated August 2, 1982. On February 1, 1983, Hearing Officer Ruff entered

   his Recommended Order. The Recommended Order was comprised of Findings of Fact, Conclusions of Law, and a Recommendation. On February 8, 1983, PETITIONER'S counsel filed a Request for Oral Hearing, along with Exceptions to the Recommended Order. The DEPARTMENT, in an Order dated March 22, 1983, denied PETITIONER'S Request for oral Hearing.

   
   

4. The DEPARTMENT finds that while the Exceptions submitted by PETITIONER are timely, they are not supported by the pleadings and evidence submitted, and are therefore rejected. More specifically, Exception No. 1 is a general statement, not a proper exception to the Recommended Order. Exception Numbers 2, 3, 4 and 5 are directed to the Hearing Officer's Conclusions of Law which the DEPARTMENT has considered and found to be correct.

   
   

5. The DEPARTMENT, with the addition of the FINDINGS OF FACT contained in this Final Order, audits the Findings of Fact in Hearing Officer Ruffs Recommended Order, dated February 1, 1983, and incorporates the same as though fully set forth at length herein.

   
   

   CONCLUSIONS OF LAW

   
   

6. Under the provisions of Chapter 120 of the Florida Statutes, the DEPARTMENT has jurisdiction over the parties and subject matter of this proceeding.

   
   

7. With the exception of the additional language contained in the following paragraph, the Conclusions of Law and Recommendation contained in Hearing Officer Ruffs Recommended Order, dated February 1, 1983, are adopted by the DEPARTMENT and incorporated herein as though set forth at length.

   
   

8. The DEPARTMENT presumes that any cab cards or road tax decals issued prior to July 1, 1980, were to be used by the PETITIONER during the period prior to the sunsetting of Chapter 323, Florida Statues. PETITIONER will be required to rebut this presumption with documentation acceptable to the DEPARTMENT.

ORDER

Based upon the foregoing FINDINGS OF FACT and CONCLUSIONS OF LAW, it is hereby Ordered that:

1. PETITIONER'S application for refund is granted to the extent set forth herein:

   
   

   1. Seven-twelfths (7/12's) of thirty-five percent (35 percent) of the road taxes paid by PETITIONER

      for the year February 1, 1980, through January 31,

      1981;

   2. All recurring, second-time, or renewal fees paid for identifying devices known as cab cards and identification stamps related to the year Feb- ruary 1, 1980, through January 31, 1981, are to be refunded in full;

   3. All charges related to cab cards, identification

      stamps, or road tax decals issued subsequent to June 30, 1980, or issued prior to July 1, 1980, to be used on or after July 1, 1980, shall be refunded in full provided that PETITIONER submits documentation acceptable to the DEPARTMENT evi- dencing the same.

      
      

2. Any other refund claims made by the PETITIONER in this action, if not addressed by this Order, are denied.

   
   

3. All refunds made pursuant to this Order shall be charged against the Public Service Commission's Regulatory Trust Fund.

DONE AND ORDERED at Tallahassee, Florida, this 29th day of March, 1983.

I HEREBY CERTIFY that a true and correct copy of the fore- going FINAL ORDER has been filed in the official records of the Department of Banking and Finance, Division of Accounting and Auditing, this 29th day of March, 1983.

GERALD LEWIS, Comptroller State of Florida

Sharon Posey AGENCY CLERK

Copies furnished to:

A. George Igler

Assistant General counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32301

George Haynie, Chief Bureau of Auditing

Office of the comptroller The Capitol, Suite 1101 Tallahassee, Florida 32301

P. Michael Ruff, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, florida 32301

John Wilbur, Esquire

1700 Barnett Bank Building Post Office Box 58 Jacksonville, Florida 32201

Thomas Barnhart

Assistant Attorney General Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301

Docket for Case No: 81-002300

Orders for Case No: 81-002300