Judges: J. D. PARRISH
Agency: Department of Revenue
Latest Update: Aug. 23, 1988
Summary: The central issue in this case is whether the jeopardy assessment filed by the Department against Petitioner should be affirmed.Respondent assisted transportation of cocaine; therefore assessment correct as to amount and its imposition against respondent.
88-0237.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ALBERT CHARLES HARRIS )
)
Petitioner, )
)
vs. ) CASE NO. 88-0237
)
STATE OF FLORIDA )
DEPARTMENT OF REVENUE, )
)
Respondent. )
)
FINAL ORDER
Pursuant to notice, a final hearing in the above-styled matter was held on June 29, 1988, in Miami, Florida, before Joyous Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:
APPEARANCES
For Petitioner: Douglas Stratton
505 Lincoln Road
Miami Beach, Florida 33139
For Respondent: William Watson and Jeffrey Dikman
Department of Legal Affairs Tax Section, Capitol Building
Tallahassee, Florida 32399-1050 BACKGROUND AND PROCEDURAL MATTERS
This case began on November 13, 1987, when the Department of Revenue (Department) filed a Notice of Jeopardy Assessment against Petitioner. This notice charged that Petitioner had engaged in the unlawful sale, use, consumption, distribution, manufacture, derivation, production, transportation, or storage of a medicinal drug, cannabis, or a controlled substance. As a result, the Department imposed a tax based upon the estimated retail price of the controlled substance. The Department also caused a warrant for the collection of delinquent sales and use tax to be recorded in the public record. Thereafter, Petitioner sought administrative review of the assessment and filed a Petition for Formal Hearing on January 11, 1988. The case was forwarded to the Division of Administrative Hearings for formal proceedings on January 16, 1988.
At the hearing, the Department presented the testimony of John J. Denmark, a tax law specialist III employed by the Organized Crime Bureau of the Department of Revenue, and Joseph Brinson, a special agent employed by the Florida Department of Law Enforcement. The Department's exhibits identified as follows were admitted into evidence: Exhibit A-I, copy of a Notice of Jeopardy Assessment; Exhibit A-2, copy of a letter dated November 13, 1987 from Denmark
to Runowicz; Exhibit A-3, copy of a Warrant for Collection of Delinquent Sales and Use Tax; Exhibit B, a copy of an indictment issued in the United States District Court, Southern District of Florida, Case No. 87-782-CR-JCP; Exhibit H, the deposition of Richard D. Bahmann taken on June 22, 1988; Exhibit I, the deposition of Wilson Lyons taken on June 22, 1988; and Exhibit J, the deposition of Frank Bahmann taken on June 24, 1988. The Department requested and official recognition was taken of the following provisions: Section 212.0505, Florida Statutes; Section 120.575, Florida Statutes; Rule 12A-1.90, Florida Administrative Code; and Section 212.15, Florida Statutes. Petitioner presented no evidence on his behalf.
During the course of the hearing, Petitioner objected to the introduction of the deposition testimony (exhibits H, I, J) on the basis that they contained information not relevant to these proceedings. Petitioner was granted 15 days leave from the hearing date to clarify the request and to specify which sections (page and line) should be stricken. Petitioner has not filed a written motion to strike specifying the sections as directed. Accordingly, the objection made at hearing being considered an ore tenus motion to strike is hereby denied.
After the hearing, neither party filed a proposed recommended order.
ISSUE
The central issue in this case is whether the jeopardy assessment filed by the Department against Petitioner should be affirmed.
FINDINGS OF FACT
Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact:
The petitioner, Albert Charles Harris, is also known as Bert or Albert Harris.
During the month of July, 1986, Petitioner was employed to copilot a flight from Florida to Colombia and to return to an airstrip located near Lakeland, Florida. The private flight was arranged for the purpose of bringing
460 kilograms of cocaine into the State of Florida. The airplane was owned by a drug importation organization that arranged transportation for drugs from Colombia to the United States.
Cocaine is a controlled substance enumerated in Section 893.03, Florida Statutes.
Richard Bahmann was employed as the pilot for the July flight in which Petitioner participated. Frank Bahmann was also employed to fly a cover plane for the aircraft piloted by Richard Bahmann and Petitioner. The "mission" of the Bahmanns and Petitioner was to assure the safe delivery of cocaine from its owners in Colombia to its owners in Florida.
Petitioner did not own the substance transported. Petitioner's employers did not own the substance transported.
Petitioner and the others were to be paid based upon the volume of cocaine they were able to transport to Florida.
Petitioner participated in the transportation of 460 kilograms of cocaine from Colombia to Florida in July, 1986.
The street value of cocaine in the Miami area in July, 1986 was
$35,000/kilo. The amounts owed to the Bahmanns and Petitioner for their participation in the transportation was $330,000. There is no evidence as to what amount Petitioner's employers were paid for their part in the transportation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
Section 212.0505(1), Florida Statutes provides:
Every person is exercising a taxable privilege who engages in this state in the unlawful sale, use, consumption, distribution, manufacture, derivation, production, transportation, or storage of any medicinal drug, as defined in chapter 465, cannabis, as defined in s. 893.02, or controlled substance enumerated in
s. 893.03. For the exercise of such privilege, a tax is levied on each taxable transaction or incident, including each occasional or isolated unlawful sale, use, consumption, distribution, manufacture, derivation, production, transportation, or storage, at the rate of 20 percent of the estimated retail price of the medicinal drug, cannabis, or controlled substance involved in the transaction or incident.
Section 120.575(2), Florida Statutes provides:
(2) In any administrative proceeding brought pursuant to s. 120.57, the department's burden of proof, except as otherwise specifically provided by general law, shall be limited to a showing that an assessment has been made against the taxpayer and the factual and legal grounds upon which the department made the assessment.
In the case at issue the Department has proved the Petitioner was an agent involved in the transportation of 460 kilograms of cocaine from Colombia to Lakeland, Florida. The amount of compensation due the participants for the
trip further linked Petitioner to the volume and identity of the substance transported. The unrefuted testimony of the other pilots involved tied Petitioner to the "mission" in July, 1986. That Petitioner has not been convicted of a criminal offense relating to the incident is not relevant. The burdens of proof in criminal and administrative proceedings are not the same. Consequently, the Department has met its burden of showing the transportation of a controlled substance did occur in this State and the estimated retail price of such substance.
ORDER
Based on the foregoing findings of fact and conclusions of law, it is ORDERED:
That the tax warrant and jeopardy assessment filed against Albert Charles Harris be affirmed.
DONE and ORDERED this 23rd day of August, 1988, in Tallahassee, Florida.
JOYOUS D. PARRISH
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 23rd day of August, 1988.
COPIES FURNISHED:
Douglas Stratton
505 Lincoln Road
Miami Beach, Florida 33139
William Watson and Jeffrey Dikman
Department of Legal Affairs Tax Section, Capitol Building
Tallahassee, Florida 32399-1050
Sam D. Alexander Executive Director
102 Carlton Building Tallahassee, Florida 32399-0100
William D. Townsend General Counsel
104 Carlton Building Tallahassee, Florida 32399-0100
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.168, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ALBERT CHARLES HARRIS, )
)
Petitioner, )
)
vs. ) CASE NO. 88-0237
)
STATE OF FLORIDA )
DEPARTMENT OF REVENUE, )
)
Respondent. )
)
CORRECTED RECOMMENDED ORDER
Pursuant to notice, a final hearing in the above-styled matter was held on June 29, 1988, in Miami, Florida, before Joyous Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:
APPEARANCES
For Petitioner: Douglas Stratton
505 Lincoln Road
Miami Beach, Florida 33139
For Respondent: William Watson and
Jeffrey Dikman
Department of Legal Affairs Tax Section, Capitol Building
Tallahassee, Florida 32399-1050 BACKGROUND AND PROCEDURAL MATTERS
This case began on November 13, 1987, when the Department of Revenue (Department) filed a Notice of Jeopardy Assessment against Petitioner. This notice charged that Petitioner had engaged in the unlawful sale, use, consumption, distribution, manufacture, derivation, production, transportation, or storage of a medicinal drug, cannabis, or a controlled substance. As a
result, the Department imposed a tax based upon the estimated retail price of the controlled substance. The Department also caused a warrant for the collection of delinquent sales and use tax to be recorded in the public record. Thereafter, Petitioner sought administrative review of the assessment and filed a Petition for Formal Hearing on January 11, 1988. The case was forwarded to the Division of Administrative Hearings for formal proceedings on January 16, 1988.
At the hearing, the Department presented the testimony of John J. Denmark, a tax law specialist III employed by the Organized Crime Bureau of the Department of Revenue, and Joseph Brinson, a special agent employed by the Florida Department of Law Enforcement. The Department's exhibits identified as follows were admitted into evidence: Exhibit A-I, copy of a Notice of Jeopardy Assessment; Exhibit A-2, copy of a letter dated November 13, 1987 from Denmark to Runowicz; Exhibit A-3, copy of a Warrant for Collection of Delinquent Sales and Use Tax; Exhibit B, a copy of an indictment issued in the United States District Court, Southern District of Florida, Case No. 87-782-CR-JCP; Exhibit H, the deposition of Richard D. Bahmann taken on June 22, 1988; Exhibit I, the deposition of Wilson Lyons taken on June 22, 1988; and Exhibit J, the deposition of Frank Bahmann taken on June 24, 1988. The Department requested and official recognition was taken of the following provisions: Section 212.0505, Florida Statutes; Section 120.575, Florida Statutes; Rule 12A-1.90, Florida Administrative Code; and Section 212.15, Florida Statutes. Petitioner presented no evidence on his behalf.
During the course of the hearing, Petitioner objected to the introduction of the deposition testimony (exhibits H, I, J) on the basis that they contained information not relevant to these proceedings. Petitioner was granted 15 days leave from the hearing date to clarify the request and to specify which sections (page and line) should be stricken. Petitioner has not filed a written motion to strike specifying the sections as directed. Accordingly, the objection made at hearing being considered an ore tenus motion to strike is hereby denied.
After the hearing, neither party filed a proposed recommended order. A Final Order was entered in error on August 23, 1988, this Corrected Recommended Order is substituted for the prior Order pursuant to Rule 22I-6.032, Florida Administrative Code.
ISSUE
The central issue in this case is whether the jeopardy assessment filed by the Department against Petitioner should be affirmed.
FINDINGS OF FACT
Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact:
The petitioner, Albert Charles Harris, is also known as Bert or Albert Harris.
During the month of July, 1986, Petitioner was employed to copilot a flight from Florida to Colombia and to return to an airstrip located near Lakeland, Florida. The private flight was arranged for the purpose of bringing
460 kilograms of cocaine into the State of Florida. The airplane was owned by a drug importation organization that arranged transportation for drugs from Colombia to the United States.
Cocaine is a controlled substance enumerated in Section 893.03, Florida Statutes.
Richard Bahmann was employed as the pilot for the July flight in which Petitioner participated. Frank Bahmann was also employed to fly a cover plane for the aircraft piloted by Richard Bahmann and Petitioner. The "mission" of the Bahmanns and Petitioner was to assure the safe delivery of cocaine from its owners in Colombia to its owners in Florida.
Petitioner did not own the substance transported. Petitioner's employers did not own the substance transported.
Petitioner and the others were to be paid based upon the volume of cocaine they were able to transport to Florida.
Petitioner participated in the transportation of 460 kilograms of cocaine from Colombia to Florida in July, 1986.
The street value of cocaine in the Miami area in July, 1986 was
$35,000/kilo. The amounts owed to the Bahmanns and Petitioner for their participation in the transportation was $330,000. There is no evidence as to what amount Petitioner's employers were paid for their part in the transportation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
Section 212.0505(1), Florida Statutes provides:
Every person is exercising a taxable privilege who engages in this state in the unlawful sale, use, consumption, distribution, manufacture, derivation, production, transportation, or storage of any medicinal drug, as defined in chapter 465, cannabis, as defined in s. 893.02, or controlled substance enumerated in
s. 893.03. For the exercise of such privilege, a tax is levied on each taxable transaction or incident, including each occasional or isolated unlawful sale, use, consumption, distribution, manufacture, derivation, production, transportation, or storage, at the rate of 20 percent of the estimated retail price of the medicinal drug, cannabis, or controlled substance involved in the transaction or incident.
Section 120.575(2), Florida Statutes provides:
(2) In any administrative proceeding brought pursuant to s. 120.57, the department's burden of proof, except as otherwise specifically provided by general law, shall be limited to a showing that an assessment has been made against the taxpayer and the factual and legal grounds upon which the department made the assessment.
In the case at issue the Department has proved the Petitioner was an agent involved in the transportation of 460 kilograms of cocaine from Colombia to Lakeland, Florida. The amount of compensation due the participants for the trip further linked Petitioner to the volume and identity of the substance transported. The unrefuted testimony of the other pilots involved tied Petitioner to the "mission" in July, 1986. That Petitioner has not been convicted of a criminal offense relating to the incident is not relevant. The burdens of proof in criminal and administrative proceedings are not the same. Consequently, the Department has met its burden of showing the transportation of a controlled substance did occur in this State and the estimated retail price of such substance.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:
That the tax warrant and jeopardy assessment filed against Albert Charles Harris be affirmed.
DONE and RECOMMENDED this 30th day of August, 1988, in Tallahassee, Florida.
JOYOUS D. PARRISH
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 30th day of August, 1988.
COPIES FURNISHED:
Douglas Stratton
505 Lincoln Road
Miami Beach, Florida 33139
William Watson and Jeffrey Dikman
Department of Legal Affairs Tax Section, Capitol Building
Tallahassee, Florida 32399-1050
Sam D. Alexander Executive Director
102 Carlton Building Tallahassee, Florida 32399-0100
William D. Townsend General Counsel
104 Carlton Building Tallahassee, Florida 32399-0100
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA, DEPARTMENT OF REVENUE TALLAHASSEE, FLORIDA
ALBERT CHARLES HARRIS,
Petitioner,
vs. CASE NO. 88-0237
STATE OF FLORIDA, DEPARTMENT OF REVENUE,
Respondent.
/
FINAL ORDER OF THE DEPARTMENT OF REVENUE
This Cause came on to be heard before the Governor and Cabinet, sitting as the Head of the Department of Revenue, at their meeting on October 25, 1988.
Pursuant to notice, a final hearing in the above-styled matter was held on June 29, 1988, in Miami, Florida, before Joyous Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:
APPEARANCES
For Petitioner: Douglas Stratton
505 Lincoln Road
Miami Beach, Florida 33139
For Respondent: William Watson and Jeffrey Dikman
Department of Legal Affairs Tax Section, Capitol Building
Tallahassee, Florida 32399-1050 BACKGROUND AND PROCEDURAL MATTERS
This case began on November 13, 1987, when the Department of Revenue (Department) filed a Notice of Jeopardy Assessment against Petitioner. This notice charged that Petitioner had engaged in the unlawful sale, use, consumption, distribution, manufacture, derivation, production, transportation, or storage of a medicinal drug, cannabis, or a controlled substance. As a result, the Department imposed a tax based upon the estimated retail price of the controlled substance. The Department also caused a warrant for the collection of delinquent sales and use tax to be recorded in the public record. Thereafter, Petitioner sought administrative review of the assessment and filed a Petition for Formal Hearing on January 11, 1988. The case was forwarded to the Division of Administrative Hearings for formal proceedings on January 16, 1988.
At the hearing, the Department presented the testimony of John J. Denmark, a tax law specialist III employed by the Organized Crime Bureau of the Department of Revenue, and Joseph Brinson, a special agent employed by the Florida Department of Law Enforcement. The Department's exhibits identified as follows were identified into evidence: Exhibit A-I, copy of a Notice of Jeopardy Assessment; Exhibit A-2, copy of a letter dated November 13, 1987 from Denmark to Runowicz; Exhibit A-3, copy of a Warrant for Collection of Delinquent Sales and Use Tax; Exhibit B, a copy of an indictment issued in the United States District Court, Southern District of Florida, Case No. 87-782-CR-JCP; Exhibit H, the deposition of Richard D. Bahmann taken on June 22, 1988; Exhibit I, the deposition of Wilson Lyons taken on June 22, 1988; and Exhibit J, the deposition of Frank Bahmann taken on June 24, 1988. The Department requested and official recognition was taken of the following provisions: Section 212.0505, Florida Statutes; Section 120.575, Florida Statutes; Rule 12A-1.90, Florida Administrative Code; and Section 212.15, Florida Statutes. Petitioner presented no evidence on his behalf.
During the course of the hearing, Petitioner objected to the introduction of the deposition testimony (exhibits H, I, J) on the basis that they contained information not relevant to these proceedings. Petitioner was granted 15 days leave from the hearing date to clarify the request and to specify which sections (page and line) should be stricken. Petitioner has not filed a written motion to strike specifying the sections as directed. Accordingly, the objection made at hearing being considered an ore tenus motion to strike is hereby denied.
After the hearing, neither party filed a proposed recommended order. A Final Order was entered in error on August 23, 1988, this Corrected Recommended Order is substituted for the prior Order pursuant to Rule 22I-6.032, Florida Administrative Code.
ISSUE
The central issue in this case is whether the jeopardy assessment filed by the Department against Petitioner should be affirmed.
FINDINGS OF FACT
Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact:
The petition, Albert Charles Harris, is also known as Bert or Albert Harris.
During the month of July, 1986, Petitioner was employed to co-pilot a flight from Florida to Colombia and to return to an airstrip located near Lakeland, Florida. The private flight was arranged for the purpose of bringing
460 kilograms of cocaine into the State of Florida. The airplane was owned by a drug importation organization that arranged transportation for drugs from Colombia to the United States.
Cocaine is a controlled substance enumerated in Section 893.03, Florida Statutes.
Richard Bahmann was employed as the pilot for the July flight in which Petitioner participated. Frank Bahmann was also employed to fly a cover plane for the aircraft piloted by Richard Bahmann and Petitioner. The mission of the Bahmanns and Petitioner was to assure the safe delivery of cocaine from its owners in Colombia to its owners in Florida.
Petitioner did not own the substance transported. Petitioner`s employers did not own the substance transported.
Petitioner and the others were to be paid based upon the volume of cocaine they were able to transport to Florida.
Petitioner participated in the transportation of 460 kilograms of cocaine from Colombia to Florida in July, 1986.
The street value of cocaine in the Miami area in July, 1986 was
$35,000/kilo. The amounts owed to the Bahmanns and Petitioner for their participation in the transportation was $330,000. There is no evidence as to what amount Petitioner's employers were paid for their part in the transportation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
Section 212.0505(1), Florida Statutes provides:
Every person is exercising a taxable privilege who engages in this state in the un- lawful sale, use, consumption, distribution, manufacture, derivation, production, trans- portation, or storage of any medicinal drug, as defined in chapter 465, cannabis, as defined in
s. 893.02, or controlled substance enumerated
in s. 893.03. For the exercise of such privilege, a tax is levied on each taxable transaction or incident, including each occasional or isolated unlawful sale, use, consumption, distribution, manufacture, derivation, production, transport- ation, or storage, at the rate of 20 percent of the estimated retail price of the medicinal drug, cannabis, or controlled substance involved in the transaction or incident.
Section 120.575(2), Florida Statutes provides:
(2) In any administrative proceeding brought pursuant to s. 120.57, the department's burden of proof, except as otherwise specifically provided by general law, shall be limited to a showing that an assessment has been made against the taxpayer and the factual and legal grounds upon which the depart- ment made the assessment.
In the case at issue the Department has proved the Petitioner was an agent involved in the transportation of 460 kilograms of cocaine from Colombia to Lakeland, Florida. The amount of compensation due the participants for the trip further linked Petitioner to the volume and identity of the substance transported. The unrefuted testimony of the other pilots involved tied Petitioner to the "mission" in July, 1986. That Petitioner has not been convicted of a criminal offense relating to the incident is not relevant. The burdens of proof in criminal and administrative proceedings are not the same. Consequently, the Department has met its burden of showing the transportation of a controlled substance did occur in this State and the estimated retail price of such substance.
Based on the foregoing findings of fact and conclusions of law, it is ORDERED that the Department's tax warrant and jeopardy assessment filed
against Albert Charles Harris be affirmed.
DONE AND ENTERED this 25th day October, 1988, in Tallahassee, Leon County, Florida.
KATIE D. TUCKER EXECUTIVE DIRECTOR DEPARTMENT OF REVENUE STATE OF FLORIDA
I HEREBY CERTIFY that a true and correct copy of the above Final Order has been entered in the Official Records of the Department of Revenue this 25th day of October, 1988.
AGENCY CLERK
Docket for Case No: 88-000237
Orders for Case No: 88-000237
| Issue Date |
Document |
Summary |
|
Aug. 23, 1988 |
DOAH Final Order
|
Respondent assisted transportation of cocaine; therefore assessment correct as to amount and its imposition against respondent.
|
