STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HARVEY DONLEY, )

)

Petitioner, )

)

v. ) CASE NO. 90-2734

)

DEPARTMENT OF REVENUE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on January 31, 1991, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: No Appearance For Respondent: Lee R. Rohe

Assistant Attorney General

Tax Section, Capitol Building Tallahassee, Florida 32399-1050

STATEMENT OF ISSUES

The issue is whether the Petitioner, Harvey Donley, is liable for the jeopardy assessment as set forth in the Revised Notice of Assessment and Jeopardy Findings dated August 6, 1990.

PRELIMINARY STATEMENT

Respondent's Requests for Admissions of August 27, 1990, were deemed admitted based on Petitioner's failure to answer same. Since he has failed to request relief from those admissions, those facts are deemed admitted for purposes of the these proceedings. See Order of October 25, 1990.

Petitioner failed to appear for the hearing. After waiting 20 minutes for his appearance, the formal hearing proceeded without him. The various notices of hearing and orders entered in this case have never been returned as undeliverable by the United States Postal Service.

The transcript of the proceedings was filed on February 20, 1991.

Respondent, the Department of Revenue, filed its proposed findings of fact and conclusions of law on March 1, 1991. These proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. On June 9, 1989, Petitioner sold a quantity of cocaine to a confidential informant at Albertson's Food Store on Apalachee Parkway, Tallahassee, Florida.

   
   

2. On June 9, 1989, Petitioner drove to Albertson's Food Store, parked his car, and got into the confidential informant's vehicle.

   
   

3. Shortly after Petitioner had entered the confidential informant's vehicle and conducted a transaction of cocaine, he was arrested.

   
   

4. At the time of Petitioner's arrest, one plastic bag containing cocaine was recovered from the seat next to where Petitioner had been seated.

   
   

5. A second bag of cocaine was recovered from Petitioner's shirt.

   
   

6. After Petitioner's arrest, Petitioner told Sgt. McKissack that he got the cocaine from one Paul Dorlag.

   
   

7. Petitioner further told Sgt. McKissack that the bag of cocaine in his shirt pocket was his "cut" of the cocaine.

   
   

8. After Petitioner's arrest, police officers executed a search warrant at Petitioner's residence.

   
   

9. During the search, under the search warrant, a small quantity of paraphernalia and drug residue were seized in Petitioner's home.

   
   

10. This paraphernalia consisted of a plastic cocaine straw.

    
    

11. Other evidence seized during the search of Petitioner's residence consisted of a cedar box containing cannabis residue and one bottle of Insitol.

    
    

12. After his arrest, Petitioner was charged with trafficking in cocaine.

    
    

13. Twenty-five and one-half (25.5) grams of cocaine were recovered from Petitioner's person when he was arrested.

    
    

14. The estimated retail price of the cocaine seized from Petitioner was

    $100 per gram.

    
    

15. The estimated retail value of the total amount of cocaine seized from Petitioner amounted to $2,550.

    
    

16. The Revised Notice of Assessment and Jeopardy Findings dated August 6, 1990, is legally valid and mathematically correct.

    
    

17. The 50% tax according to the revised assessment is $1,275. The 25% surcharge according to the revised assessment is $637.50.

    
    

18. The penalty of 5% per month according to the revised assessment is

    $95.63.

    
    

19. Interest accrued through August 2, 1990, amounts to $238.14.

20. The total amount of the legal assessment against Petitioner is

    $2,246.27.

    
    

21. The additional interest for the period from August 2, 1990, to the date of the hearing, January 31, 1991, amounts to $114.66. Interest continues to accrue until the assessment is paid.

    
    

22. The total assessment due through January 31, 1991, is $2,360.93.

    
    

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

    
    

24. The Department of Revenue issued a valid Revised Notice of Assessment and Jeopardy Findings to the Petitioner on August 6, 1990. The assessment is legally valid and mathematically correct.

    
    

25. As a result of his involvement in the transaction found above, Petitioner is liable for the revised assessment in the amount of $2,246.27. Interest computed to the date of the hearing brings the assessment up to a total amount of $2,360.93.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Revenue enter a Final Order upholding the revised assessment in the amount of $2,360.93, plus additional interest as shall become due after the date of the hearing.

RECOMMENDED this 13th day of March, 1991, in Tallahassee, Florida.

DIANE K. KIESLING

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 13th

day of March, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2734

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Revenue

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-20(1-20) and 21(16).

COPIES FURNISHED:

Lee R. Rohe

Assistant Attorney General Tax Section, Capitol Building

Tallahassee, Florida 32399-1050

Harvey Donley

4918-B Crawfordville Road Tallahassee, Florida 32304

J. Thomas Herndon Executive Director Department of Revenue

104 Carlton Building Tallahassee, FL 32399-0100

Vicki Weber General Counsel

Department of Revenue

204 Carlton Building Tallahassee, FL 32399-0100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-002734

Orders for Case No: 90-002734