STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM CLAYTON SAPP, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3989

) DEPARTMENT OF REVENUE, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Cross City, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on October 24, 1989.

APPEARANCES

The parties are represented as follows:

For Petitioner: William Clayton Sapp, pro se

#114370

Cross City Correctional Institution Work Camp

P.O. Box 1500-236WC

Cross City, Florida 32628

For Respondent: Lee Rohe, Esquire

Department of Legal Affairs The Capitol - Tax Section

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUES

The issue at the hearing was whether Petitioner owes any tax for the sale, production or manufacture of marijuana pursuant to Section 212.0505, Florida Statutes.

PRELIMINARY STATEMENT

On June 13, 1988, Respondent filed a jeopardy assessment against Petitioner for marijuana which he had grown in 1987 and 1988. Petitioner challenged that assessment on various grounds and requested an administrative hearing.

Petitioner's request for hearing was forwarded to the Division of Administrative Hearings. During the pendency of this proceeding Respondent filed a revised jeopardy assessment dated March 8, 1989. The revised jeopardy assessment is the assessment at issue in this proceeding.

On August 3, 1989, an Order was entered in this case allowing Petitioner additional time in which to answer request for admissions filed by Respondent. The order's penalty for failing to answer the request for admissions was the

admission of the facts contained in the request. Petitioner failed to answer Respondent's request for admissions.

On October 16, 1989, argument was heard on whether Respondent's request for admissions should be deemed admitted due to Petitioner's failure to appropriately respond to those requests. During the motion hearing, Petitioner did not present any reason for his failure to respond to Respondent's request for admissions. Petitioner was given two opportunities to respond to those requests and did not do so. The facts contained in Respondent's request for admissions were, therefore, deemed admitted for purposes of this hearing.

At the hearing, Petitioner testified in his own behalf and did not offer any exhibits into evidence. Respondent called two witnesses and offered three exhibits into evidence.

Respondent filed its Proposed Recommended Order on December 15, 1989.

Petitioner did not file a Proposed Recommended Order. The Respondent's Proposed Findings of Fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative or subordinate. Specific rulings on the parties' proposed Findings of Fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. In 1987, Petitioner grew thirty (30) pounds of marijuana with a fair market value of $20,000. The marijuana was grown within the State of Florida.

   
   

2. In 1988, Petitioner grew 116 pounds of marijuana with a fair market value of $500 per pound for a total of $58,000. This marijuana was also grown within the State of Florida.

   
   

3. The growing of marijuana is a taxable event in Florida pursuant to Section 212.0505, Florida Statutes. The tax is assessed at the fair market value of the marijuana grown. Additionally, there are surcharges and penalties assessable under the same statute for growing marijuana. The tax attributable to Petitioner's enterprise is as follows:

20% tax of fair market value $15,600.00 5% penalty per month up to 25%

of tax due 3,900.00

Additional 50% penalty 7,800.00 1% interest per month as of date

of final hearing (October 24, 1989)

($5.13 per day) from date of hearing) 2,746.14 Total $30,046.14

1. Petitioner did not demonstrate any defense to the assessment of this tax by the Department and did not demonstrate a defense to the payment of the above assessment. Petitioner, therefore, owes the Department $30,046.14 in penalties and taxes plus interest at the rate of $5.13 per day from October 24, 1989.

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

   
   

3. Section 212.0505, Florida Statutes, is the section

of the Florida Revenue Code which provides for the taxation of marijuana production or agriculture. The evidence clearly demonstrated that Petitioner engaged in such production. The amounts grown along with its fair market value were admitted for purposes of this hearing. The Petitioner, therefore, owes the Respondent the taxes, penalties and interest outlined above.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is:

RECOMMENDED that the Department enter a Final Order upholding the jeopardy assessment, dated March 8, 1989, assessing the Respondent $30,046.14 in penalties and taxes plus $5.13 per day from October 24, 1989.

DONE and ENTERED this 31 day of January, 1990, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31 day of January, 1990.

APPENDIX TO CASE

The facts contained in paragraphs 1, 2, 4, 7, 8, 10, 11, 12, 13,

14, 15, 16, 17, 18, 21, 22, 24, 25 and 26 of Respondent's Proposed Recommended Order are adopted, in substance, insofar as material.

The facts contained in paragraphs 3, 5, 6, 9, 19, 20 and 23 of Respondent's Proposed Recommended Order are subordinate.

COPIES FURNISHED:

William D. Moore General Counsel Department of Revenue

203 Carlton Building Tallahassee, Florida 32399-0100

Katie D. Tucker Executive Director

104 Carlton Building Tallahassee, Florida 32399-0100

William Clayton Sapp #114370

Cross City Correctional Institution Work Camp

P.O. Box 1500-236WC

Cross City, Florida 32628

Lee Rohe, Esquire Department of Legal Affairs The Capitol - Tax Section

Tallahassee, Florida 32399-1050

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM CLAYTON SAPP, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3989

) DEPARTMENT OF REVENUE, )

)

Respondent. )

)

ORDER CORRECTING RECOMMENDATION IN RECOMMENDED ORDER

The undersigned hearing officer entered a Recommended Order on January 31, 1990 in the above-styled case. The undersigned inadvertently assessed the Respondent (Department of Revenue) instead of the Petitioner (William Clayton Sapp). It is, therefore,

ORDERED THAT Page 5 of the Recommended Order be replaced with the corrected Page 5, which the undersigned has attached to this Order.

DONE AND ORDERED this 9 day of February, 1990, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31 day of February, 1990.

COPIES FURNISHED:

Lee R. Rohe, Esquire Department of Legal Affairs The Capitol --Tax Section

Tallahassee, Florida 32399-1050

William D. Moore General Counsel Department of Revenue

203 Carlton Building Tallahassee, Florida 32399-0100

Katie D. Tucker Executive Director

104 Carlton Building Tallahassee, Florida 32399-0100

William Clayton Sapp 114370

Cross City Correctional Institution Work Camp

P. O. Box 1500-236WC

Cross City, Florida 32628

RECOMMENDED that the Department enter a Final Order upholding the jeopardy assessment, dated March 8, 1989, assessing the Petitioner $30,046.14 in penalties and taxes plus $5.13 per day from October 24, 1989.

DONE and ENTERED this 31 day of January, 1990, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the

Division of Administrative Hearings this 31 day of January, 1990.

COPIES FURNISHED:

William D. Moore General Counsel Department of Revenue

203 Carlton Building Tallahassee, Florida 32399-0100

Katie D. Tucker Executive Director

104 Carlton Building Tallahassee, Florida 32399-0100

William Clayton Sapp #114370

Cross City Correctional Institution Work Camp

P.O. Box l500-236WC

Cross City, Florida 32628

Lee Rohe, Esquire Department of Legal Affairs The Capitol - Tax Section

Tallahassee, Florida 32399-1050 2

Docket for Case No: 88-003989

Orders for Case No: 88-003989