STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHEROKEE RENTAL AND )

CONSTRUCTION CO., INC., )

)

Petitioner, )

)

vs. ) CASE NO. 90-3246

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in this matter before Diane Cleavinger, a duly designated Hearing Officer of the Division of Administrative Hearings, on September 11, 1990, in Pensacola, Florida.

APPEARANCES

For Petitioner: The Petitioner did not appear at

the formal hearing.

For Respondent: Vernon Whittier, Jr., Esquire

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0450 STATEMENT OF THE ISSUES

The issue in this case is whether the Respondent correctly assessed a fuel use tax or civil penalty against Petitioner.

PRELIMINARY STATEMENT

The Respondent, the Department of Transportation assessed a fuel use tax and civil penalty against Petitioner, Cherokee Rental And Construction Co., Inc. Petitioner requested that the assessment be refunded. After review, the Department denied Petitioner a refund of the assessment made against it. After notification of the Department's decision, the Petitioner requested a formal administrative hearing. The Petitioner's request was forwarded to the Division of Administrative Hearings.

The Petitioner failed to appear at the formal hearing. After waiting fifteen minutes for the Petitioner to appear, the Department made an ore tenus motion to dismiss. The Department was informed that a Recommended Order would be issued recommending dismissal of this case.

No proposed recommended orders have been filed by the parties.

FINDINGS OF FACT

1. In a letter dated April 13, 1990, the Department informed the Petitioner, Cherokee Rental And Construction Co., Inc., that it was denying the Petitioner's request for refund of the $95.00 fuel tax and civil penalty assessment it had previously paid to the Department.

   
   

2. In a letter received by the Department on February 13, 1990, the Petitioner requested an administrative hearing to contest the Department's decision. The address included on the Petitioner's letter was the address used by the Department to notify the Petitioner of its decision to deny its request for a refund.

   
   

3. A Notice of Assignment and Order was issued on June 1, 1990, giving the parties an opportunity to provide the undersigned with suggested dates and a suggested place for the formal hearing. The information was to be provided within ten days of the date of the Notice. This Notice was sent by United States mail to the Petitioner at the address listed in its letter requesting a formal hearing. Neither party responded to the Notice.

   
   

4. On July 12, 1990, a Notice of Hearing was issued setting the formal hearing for 11:00 a.m., September 11, 1990. The location of the hearing was listed in the Notice. The Notice of Hearing was sent by United States mail to the Petitioner at the address listed in his letter requesting a formal hearing.

   
   

5. The Petitioner did not appear at the place set for the formal hearing at the date and time specified on the Notice of Hearing. The Department was present at the hearing. The Petitioner did not request a continuance of the formal hearing or notify the undersigned that he would not be able to appear at the formal hearing. After waiting fifteen minutes for the Petitioner to appear, the hearing was commenced.

   
   

6. At the commencement of the formal hearing the Department was informed that it could proceed with the formal hearing or, since Petitioner had the burden of proof in this case, move for dismissal of the case. The Department elected to make an ore tenus motion for dismissal.

   
   

7. The Department was informed that a Recommended Order would be issued recommending dismissal of this case.

   
   

   CONCLUSIONS OF LAW

   
   

8. 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).

   
   

9. The formal hearing requested by the Petitioner was properly set and noticed by Notice of Hearing issued July 12, 1990. Rule 22I-6.022, Florida Administrative Code. The Petitioner failed to appear at the formal hearing at the time and place set for the formal hearing. Therefore, pursuant to Rule 22I- 6.022, Florida Administrative Code, the Petitioner's actions constitutes grounds for dismissal of this proceeding.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order dismissing the Petitioner's request for hearing in this case for failure to appear at the final hearing.

RECOMMENDED this 18th day of October, 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 18th day of October, 1990.

COPIES FURNISHED:

Bill Read

Cherokee Rental & Construction Co., Inc. Post Office Box 850606

Mobile, Alabama 36685

Vernon L. Whittier, Esquire Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0450

Ben G. Watts, Secretary

Attn: Eleanor F. Turner, M.S. 58 Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams, Esquire

562 Haydon Burns Building Tallahassee, Florida 32399-0458

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: 90-003246

Orders for Case No: 90-003246