STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GERALD J. VANACKER, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2712

) DEPARTMENT OF REVENUE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on October 1, 1991, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Gerald J. Vanacker, pro se

1074 S.W. Jennifer Terrace Port St. Lucie, Florida 34953

For Respondent: Ralph R. Jaeger, Esquire

Assistant Attorney General Tax Section, Capitol Building

Tallahassee, Florida 32399-1550 STATEMENT OF THE ISSUES

At issue in this proceeding is whether petitioner owes respondent a tax and surcharge, together with interest, on account of an unlawful sale, use, consumption, distribution, manufacture, derivation, production, transportation or storage of cannabis.

PRELIMINARY STATEMENT

Respondent issued a notice of assessment and jeopardy findings against petitioner on August 27, 1990, which claimed petitioner owed a tax and surcharge of $25,500, together with interest at the rate of $8.38 per day after September 21, 1990, for having engaged in the unlawful sale, use, consumption, distribution, manufacture, derivation, production, transportation or storage of cannabis. On April 18, 1991, petitioner filed a timely petition for an administrative hearing to contest the petitioner's assessment, and the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, petitioner called no witnesses, and offered no exhibits. Respondent called Daniel Losey, John Curry, and Dino Dentale as witnesses. Respondent's exhibits 1-4 were received into evidence.

The transcript of hearing was filed October 15, 1991, and the parties were granted leave until October 25, 1991, to file proposed findings of fact.

Respondent elected to file such proposals, and they have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. During the month of August 1990, petitioner, Gerald J. Vanacker, conspired with one Perry Anthony Laspina (Laspina) to purchase 40 pounds of marijuana (cannabis) in Broward County, Florida, for $34,000.00. Unbeknownst to the conspirators, the person from whom they arranged to purchase the marijuana was a detective with the City of Fort Lauderdale Police Department.

   
   

2. The negotiations for the sale were made by telephone, and were primarily between Laspina and the detective; however, the petitioner was present with Laspina when the terms of the agreement were finalized. The basic terms of the agreement were that the detective would deliver 40 pounds of marijuana to Laspina in exchange for $34,000.00. At the actual time of sale, the agreement had been modified, due to a shortage of cash funds, to call for the exchange of

   $25,000 and the delivery of certain personal property as collateral for the payment of the balance of the agreed upon price.

   
   

3. On August 15, 1990, petitioner and Laspina met with two undercover detectives, one of whom was the detective with whom Laspina had negotiated the deal, to purchase the subject marijuana. At that time, one of the detectives took possession of Laspina's car, left the area, loaded it with a 40-pound bale of marijuana, and returned the car and its cargo of marijuana to the site. Thereafter, the trunk was opened, and petitioner and Laspina examined and approved the marijuana. At that point, Laspina entered the detective's car so the money he had brought could be counted and exchanged, and petitioner and the other detective waited in Laspina's car. Shortly thereafter, other detectives arrived on the scene and petitioner and Laspina were arrested and charged with possession of marijuana, a felony, in violation of Section 893.13, Florida Statutes.

   
   

4. On August 27, 1990, the respondent, Department of Revenue (Department) issued a Notice of Assessment and Jeopardy Findings which assessed tax and penalties in the amount of $25,500.00, together with interest thereon at the rate of $8.38 per day after September 21, 1990, against the petitioner, pursuant to Section 212.0505, Florida Statutes. The factual basis for the assessment was the petitioner's involvement in the marijuana transaction described in the foregoing findings of fact. Following unsuccessful efforts to resolve the matter, petitioner ultimately filed a timely petition seeking a formal hearing to contest the Department's assessment.

   
   

5. At hearing, petitioner contended that he was not involved in any sale, use, or distribution of the subject marijuana, but had merely loaned Laspina

   $9,000.00 so he, Laspina, could purchase the marijuana. In exchange, petitioner expected a "quick turnaround" on his investment in that he expected to be repaid his $9,000.00, together with an additional $2,100.00, the same day that the marijuana was acquired. According to petitioner, he was merely present at the scene to make sure Laspina did not abscond with his money.

   
   

6. Petitioner's contention regarding the limited nature of his involvement is contrary to the credible proof which supported the findings of fact hereto made. Moreover, even were petitioner's contentions to be credited, his

   involvement in the subject sale was likewise so extensive as to make him a conspirator in such unlawful transaction.

   
   

7. In sum, the proof supports the conclusion that petitioner did engage in the unlawful use or distribution of cannabis as set forth in the Notice of Assessment and Jeopardy Findings, and that the Department's assessment of the tax, surcharge, and interest was reasonable and appropriate.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 72.011 and 120.57(1), Florida Statutes.

   
   

9. Pertinent to this case, Section 212.0505, Florida Statutes, provides:

   
   

   1. Every person is exercising a taxable privilege who engages in this state in the unlawful sale, use, consumption, distribu- tion, manufacture, derivation, production, transportation, or storage of any medicinal drug, as defined in chapter 465, cannabis as defined in s. 893.02, or controlled sub- stance 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, distribu- tion, manufacture, derivation, production, transportation, or storage, at the rate of

      50 percent of the estimated retail price of the medicinal drug, cannabis, or controlled substance involved in the transaction or incident.

      
      

      * * *

      
      

      (5) Any assessment made pursuant to this section shall be deemed prima facie correct in any judicial or administrative proceeding in this state. The suppression of evidence on any ground by a court in a criminal case involving a transaction or incident taxable under this section or the dismissal of criminal charges in such a case shall not

      affect any assessment made under this section.

10. The term "use" is defined at Section 212.02(21), Florida Statutes, as: "Use" means and includes the exercise of any

    right or power over tangible personal property incident to the ownership thereof, or interest therein, except that it does not include the sale at retail of that property in the regular course of business.

11. Section 893.02, Florida Statutes, includes the following pertinent definitions of terms used in Chapter 893, the Florida Comprehensive Drug Abuse Prevention and Control Act:

    
    

    (5) "Deliver" or "delivery" means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.

    
    

    * * *

    
    

    (7) "Distribute" means to deliver, other than by administering or dispensing, a controlled substance.

    
    

12. At this point it is helpful to consider some of the basic legal principles applicable to criminal conspiracies, especially conspiracies involving illegal drug transactions. In United States v. Oropeza, 564 F.2d 316 (9th Cir. 1977), the court noted, at page 321:

    
    

    Conspiracy is established when there is an agreement to accomplish an illegal objective, coupled with one or more overt acts in fur- therance of the illegal purpose and the requisite intent necessary to commit the underlying substantive offenses. United States v. Monroe, 552 F.2d 860 (9th Cir.) cert. denied, 481 U.S. 972, 97 S.Ct. 2936,

    53 L.Ed.2d 1069 (1977).

    
    

    The government need not show an explicit agreement. Iannelli v. United States, 420 U.S. 770, 777 n.10, 95 S.Ct. 1284, 43

    L.Ed.2d 616 (1975); United States v. Monroe, supra.

    
    

    The criminal scheme may be inferred from circumstantial evidence, which is as probative as direct evidence. Iannelli v. United States, supra; United States v. Peterson, 549 F.2d 654, 657 (9th Cir. 1977).

    
    

    Once a conspiracy is shown, there need be only slight evidence to link the defendant with it. United States v. Turner, 528 F.2d 143 (9th Cir.), cert. denied sub nom. Grimes, et al. v. United States, 423 U.S. 996, 96 S.Ct. 426, 46

    L.Ed.2d 371 (1975). The slight evidence

    
    

    . . . must be of the quality which will reasonably support a conclusion that the particular defendant in question willfully participated in the unlawful plan with the intent to further some object or purpose of the conspiracy.

    United States v. Freie, 545 F.2d 1217, 1222 (9th Cir.), cert. denied sub nom. Gangadean

    v. United States, 430 U.S. 966, 97 S.Ct. 1645, 52 L.Ed.2d 356 (1976).

    
    

    And at page 322, the Oropeza court continued:

    
    

    One conspirator is liable for the acts of his coconspirators in furtherance of the conspir- acy, United States v. Testa, 548 F.2d 847 (9th Cir. 1977), even when he may be unaware of some of the acts or actors. United States v. Roselli, 432 F.2d 879 (9th Cir. 1970), cert. denied, sub nom. Jacobs v. United States, 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d

    828 (1971); United States v. Knight, 416 F.2d

    1181 (9th Cir. 1969).

    
    

13. Similar to the language quoted immediately above is the recognition in Boyd v. State, 389 So.2d 642 (Fla. 2d DCA 1980), of

    
    

    the basic principal that when a conspiracy is established, everything said, written, or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done, or written by every one of them and may be proved against each. Brown v. State, 128 Fla. 762, 175 So. 515 (1937),

    clarified, 130 Fla. 479, 178 So. 153 (1938).

    
    

14. In United States v. Tamargo, 672 F.2d 887 (11th Cir. 1982), the court said, at page 890:

    
    

    As for appellant Tamargo, the evidence is also sufficient to support his conviction for possession with intent to distribute methaqualone. Possession of a controlled substance may be actual or constructive.

    United States v. Moreno, 649 F.2d 309 (5th Cir. 1981). Moreover, as with actual possession, constructive possession of a controlled substance may be exclusive or joint and may be proved by circumstantial as well as direct evidence. Id. Appellant Tamargo was a participant in a conspiracy to possess methaqualone with intent to distribute, and the evidence shows beyond any doubt that some participants in this conspiracy possessed methaqualone with the intent to distribute.

    Therefore, Tamargo, as a co-conspirator, is considered also to have possessed methaqualone with the intent to distribute. United States v. Garcia, 655 F.2d 59, 63 (5th Cir. 1981).

    
    

    The Tamargo court also included the following comments regarding definitions identical to those quoted in paragraph 4 of these conclusions of law:

    Appellants' final contention is that the evidence was insufficient to support their convictions for distribution of methaqualone. "The term 'distribute' means to deliver . . . a controlled substance." 21 U.S.C. Sec.

    802.(11). "The terms 'deliver' or 'delivery' mean the actual constructive, or attempted transfer of a controlled substance. "

    21 U.S.C. Sec. 802(8) (emphasis added). The statutory scheme clearly defines "distribution" as a delivery, and "delivery" can be merely an attempted transfer.

    
    

15. Applying all of the foregoing to the facts in this case, it is first noted that the petitioner agreed with Laspina to accomplish an illegal objective and he engaged in overt acts to advance the purposes of the illegal objective, including loaning money and participating in the actual purchase of the marijuana. Therefore, the petitioner was clearly a conspirator in the illegal objective. See United States v. Oropeza, supra. And as a conspirator, he is deemed to have done everything done by any of the other conspirators in the furtherance of the conspiracy. See Boyd v. State, supra.

    
    

16. The activities that invoke the tax consequences of Section 212.0505, Florida Statutes, include "use," and "distribution." On August 15, 1990, when the marijuana was loaded into Laspina's car, he ultimately had possession of the motor vehicle and its cargo of 40 pounds of marijuana, which he intended to distribute or sell to others later that day The only known impediment to the consummation of the scheme was his arrest. This constitutes a taxable "use" and "distribution" within the meaning of Section 212.0505, Florida Statutes.

    
    

17. As a result of his status as a conspirator, the petitioner is deemed to have done everything done by any of the other conspirators in the furtherance of the conspiracy, and is liable for all of those acts. Therefore, the petitioner is deemed to have engaged in the taxable use and distribution of marijuana and is liable for the tax consequences of those acts.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that the Department issue a final order concluding that petitioner, Gerald J. Vanacker, is liable for taxes, penalties, and interest pursuant to Section 212.0505, Florida Statutes, and assessing the amount of such liability at $25,500.00, plus interest at the rate of $8.38 per day since September 21, 1990.

RECOMMENDED in Tallahassee, Leon County, Florida, this 15th day of November 1991.

WILLIAM J. KENDRICK

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 15th day of November 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2712

The Department's proposed findings of fact are addressed as follows:

1. Rejected as not a finding of fact.

2 & 3. Addressed in paragraph 3.

4-23. Addressed in paragraphs 1-3, 5 and 6.

24-29. Addressed in paragraphs 4 and 7.

COPIES FURNISHED:

Gerald J. Van Acker, pro se 1074 S.W. Jennifer Terrace Port St. Lucie, Florida 34953

Ralph R. Jaeger, Esquire Assistant Attorney General Tax Section, Capitol Building

Tallahassee, Florida 32399-1550

Vicki Weber, Esquire J. Thomas Herndon

General Counsel Executive Director

Department of Revenue 104 Carlton Building

204 Carolton Building Tallahassee, Florida 32399 Tallahassee, Forida 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: 91-002712

Orders for Case No: 91-002712