STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARL R. GLASS, )

d/b/a OSCEOLA FORGE, )

)

Petitioner, )

)

vs. ) CASE No. 93-0249

)

DEPARTMENT OF REVENUE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on May 5, 1993, in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Carl R. Glass (pro se)

d/b/a Osceola Forge

2749 North Orange Blossom Trail Kissimmee, Florida 34741

For Respondent: James F. McAuley, Esquire

Assistant Attorney General Capitol Building

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUES

Whether the lease of the face of a billboard sign for the purpose of placing an advertising message on the billboard is an improvement to real property for which sales and use tax is owed.

Whether the receipt by the Petitioner of incorrect tax information and advise by employees of Respondent is sufficient to equitably release Petitioner from an assessment of sales tax due to the State.

PRELIMINARY STATEMENT

Following an audit by Respondent, Petitioner filed a protest letter challenging the assessment. On December 1, 1992, Respondent issued its Notice of Decision. On January 6, 1993, Petitioner filed a Petition for Formal Administrative Hearing with the Department of Revenue, and this matter was referred to the Division of Administrative Hearings on January 14, 1993. On January 28, 1993, Respondent, through counsel, filed a Motion to Dismiss. Said motion was withdrawn on February 3, 1993, at which time the Respondent filed its Answer to the petition. Following discovery, this hearing followed.

At the hearing, the parties offered in evidence a joint stipulation of fact, which included a sample lease and the Department's Notice of Decision. Petitioner testified in his own behalf, and offered no exhibits in evidence. The Department called two witnesses and offered two exhibits in evidence. The transcript of the hearing was filed on June 14, 1993. Petitioner did not file proposed findings of fact as of the date of the filing of this order.

Respondent filed proposed findings of fact and conclusions of law on June 24, 1993.

My specific rulings on Respondent's proposals are set forth in the Appendix attached hereto.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner is Carl R. Glass, d/b/a Osceola Forge located at 2749 North Orange Blossom Trail, Kissimmee, Florida 34744.

   
   

2. Petitioner is engaged in the business of manufacturing and fabricating burglar bars, steel gates, decorative plastic ornamental castings and injection moldings.

   
   

3. Petitioner built and erected one double sided billboard on his business property at 2749 North Orange Blossom Trail, Kissimmee, Florida. It is anchored by its owns supports into the ground as a permanent improvement to Petitioner's real property. The size of the billboard is approximately 12' x 38', plus an apron that runs along the length of the bottom of the billboard.

   
   

4. Petitioner leases the face and apron of each side of billboard to customers who are generally required to supply their own labor and material to create an advertising message.

   
   

5. The billboard was built to provide double-sided advertising for lanes of traffic going northbound or southbound past Petitioner's place of business.

   
   

6. Petitioner has rented the billboard to various lessees for a monthly rental fee over the relevant period. Petitioner did not charge or collect sales and use taxes on the rental fee.

   
   

7. Respondent conducted an audit of Petitioner's entire business, for the period May 1, 1986 through April 30, 1991. There was only one item assessed as a result of the audit which was on the lease of the billboard located on Petitioner's business property.

   
   

8. Petitioner was assessed sales and use taxes, interest and penalties totalling $6,142.38, including taxes ($4,017.76) with a per diem interest rate of $1.32 to be computed from 10/3/91 to the present.

   
   

9. Additional interest due, as of July 1, 1993, was calculated to equal

   $842.16 (638 days x $1.32).

   
   

10. The sales tax assessment was based on invoices and other information provided by the Petitioner and followed the Department of Revenue routine procedures required for all audits.

11. From January 1987 through February 1991, Petitioner, or his secretary, made five telephone calls from Osceola Forge to the Taxpayer Assistance Number of the Department of Revenue's regional office located in Maitland, Florida, requesting assistance. On each occasion, the Department's employee advised Petitioner or his employee that they could call the Department's Tallahassee 800 taxpayer assistance number. On at least one occasion, Petitioner's secretary or Petitioner was advised that the transaction was tax exempt, and need not be collected.

    
    

12. Petitioner was aware of the 800 taxpayer assistance number in Tallahassee and tried to call the number. However, he was unable to get through, and called the local office only.

    
    

13. On April 9, 1992, Petitioner personally telephoned the Titusville office of the Department of Revenue.

    
    

14. On each occasion, Petitioner inquired whether or not sales or use taxes should be collected on the rental of the billboard.

    
    

15. A free, updated Sales and Use Tax Rules Book is available to any tax payer upon request. In addition, a taxpayer could personally appear and bring documentation relating to any questions relating to the sales and use tax at any regional office.

    
    

16. Petitioner did not obtain an updated rules book or personally appear at a regional office.

    
    

17. On April 30, 1992, Petitioner filed a Protest Letter with Respondent challenging the abovementioned tax assessment.

    
    

18. Respondent issued to Petitioner a Notice of Decision dated December 1, 1992.

    
    

19. On January 8, 1993, Petitioner filed a Request for a Formal Administrative Hearing with Respondent.

    
    

20. To date, Petitioner has not paid any of the contested taxes, interest, and penalties to Respondent.

    
    

21. Petitioner relied on information provided by his secretary, his accountant, and brief phone conferences with the DOR's Maitland office to determine that the rental fees were tax exempt, and did not collect the sales tax from his customers.

    
    

22. The DOR Audit Supervisor testified that there is a clear distinction between the taxable rental of a billboard and the nontaxable services of placing an advertising message on the billboard. The rental of the face of the billboard is a taxable transaction. On the other hand, if a person rents or leases a billboard, then hires a third party to place an advertising message on the billboard, this advertising service is tax exempt.

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

    
    

24. Section 212.031, Florida Statutes (1991), states that a sales tax is due from every person "in the business of renting, leasing, letting, or granting a license for the use of any real property. . ."

    
    

25. Rule 12A-1.051(22), Florida Administrative Code, considers "Roadside billboards . . . erected on the site where they are to be permanently located, and which rest on foundations, or have their own supports anchored into the ground in a permanent manner . . . as improvements to real property."

    
    

26. Rule 12A-1.070(1)(a), Florida Administrative Code, reads: "Every person who rents or leases any real property, or who grants a license to use . .

    . real property is exercising a taxable privilege." Specifically, Rule 12A- 1.070(1), Florida Administrative Code, states: "An agreement between the owner of real property and an advertising agency for the use of real property to display advertising matter is a taxable license to use real property."

    
    

27. The rate of tax prior to February 1, 1988, was 5 percent and the rate of Tax on or after February 1, 1988, is 6 percent. See Rule 12A-1.070(4)(b), Florida Administrative Code.

    
    

28. The burden of proof in this case is on the Department to show by a preponderance of the evidence that the sales tax assessment was proper.

    
    

29. An agency's rulemaking authority has been accorded great deference by the courts, and will not be overturned unless the agency's interpretation of the statutes are clearly erroneous. Pershing Industries v. Deptartment of Banking,

    591 So.2d 991, 993 (Fla. 1st DCA 1991); Eager v. Florida Keys Aqueduct Authority, 580 So.2d 771 (Fla. 3rd DCA 1991).

    
    

30. Petitioner's contention that the Dept. is estopped to collect sales tax on the bill board is without merit. The elements of estoppel must be specifically pleaded and proved. To establish estoppel the following must be shown:

    
    

    1.) Representation as to a material fact that is contrary to a later- asserted position.

    
    

    2.) Reasonable reliance on that representation, and

    
    

    3.) A change in position detrimental to the party claiming estoppel.

    Department of Revenue v. Hobbs, 368 So.2d 367, 368 (Fla. 1st DCA 1979).

    
    

31. Petitioner presented insufficient credible evidence to support his claim that DOR had misrepresented to the taxability of the billboard rental. The list of telephone calls on Petitioner's telephone bills do not provide sufficient proof to establish that DOR made any representation to the taxpayer. These documents merely show that six (6) brief telephone calls of 1-6 minutes duration were made from Petitioner's place of business to the Maitland (Winter Park area) Office of DOR over a five-year period. Moreover, Petitioner

    testified that he had personally made only one, or perhaps two, calls personally to DOR.

32. It is reasonable that a questions such as that posed by Petitioner on billboard rentals might require additional information from the taxpayer. Further, if there was any doubt as to the local DOR office response, the normal procedure would be to refer the taxpayer to DOR's 800 number in Tallahassee designated for Taxpayer Assistance. Petitioner admitted that he attempted to call Tallahassee's 800 Taxpayer Assistance Number but claimed it was always busy.

    
    

33. In addition to proof of some misrepresentation, the doctrine of estoppel requires that any representation pertain to a "material fact." In this case, Petitioner is claiming that there was a mistaken statement of law.

    
    

34. In the event that an employee of a state agency makes a mistake of law, estoppel will not be applied against that state agency except in rare and unusual circumstances. State Dept. of Revenue v. Anderson, 403 So.2d 397, 400 (Fla. 1981) ("the State cannot be estopped through mistaken statements of law"); Dolphin Outdoor Advertising v. DOT, 582 So.2d 709, 710 (Fla. 1st. DCA 1991).

    
    

35. Assuming that Petitioner had relied on advice given by DOR, Petitioner presented no evidence to show that he had detrimentally changed position based on the advice given by DOR. Petitioner also relied on his secretary's assertions and inquiries to his accountant before determining not to collect the tax.

    
    

36. Petitioner's reliance on the limited tax advice he obtained was not reasonable. A reasonable person would seek more information before ingnoring his obligation.

    
    

37. Petitioner has shown reasonable cause to abate also penalties in this case.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Revenue enter a Final Order upholding

its sales and use tax assessment, waive penalties and interest accrued prior to October 2, 1991, and assess a tax of $4,017.76, plus interst from the date due.

DONE and ENTERED this 14th day of July, 1993, in Tallahassee, Florida.

DANIEL M. KILBRIDE

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 14th day of July, 1993.

APPENDIX

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties.

Proposed findings of fact submitted by Petitioner. Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by Respondent.

Proposed findings submitted by Respondent are accepted except as noted below. Those proposed findings neither noted below nor included in the Hearing Officer's findings were deemed unnecessary to the conclusions reached.

Rejected as argument: paragraphs 37, 38, 39

COPIES FURNISHED:

Carl R. Glass

2749 North Orange Blossom Trail Kissimmee, Florida 34741

James McAuley, Esquire Assistant Attorney General Capitol Building

Tallahassee, Florida 32399-1050

Larry Fuchs Executive Director

Department of Revenue

104 Carlton Building Tallahassee, Florida 32399-0100

Linda Lettera General Counsel

Department of Revenue

204 Carlton Building Tallahassee, Florida 32399-0100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the final order in this case concerning their 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.

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AGENCY FINAL ORDER

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STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARL R. GLASS,

d/b/a/ OSCEOLA FORGE, Petitioner,

vs. Case No. 93-0249

DOR 93-19-FOF

DEPARTMENT OF REVENUE,

Respondent.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings in the above styled case submitted a Recommended Order to the Department of Revenue. Respondent, in reply, filed Respondent's Exceptions To Recommended Order, and Respondent's Proposed Substituted Order. Copies of the Recommended Order, Respondent's Exceptions to Recommended Order, and Respondent's Proposed Substituted Order are attached hereto.

Pursuant to Chapter 120, Florida Statutes, the Department has jurisdiction of this cause.

The Hearing Officer in his Recommended Order recommended that the Department enter a Final Order upholding its sales and use tax assessment of $4,017.76 imposed on the rental of Petitioner's single outdoor billboard to various businesses for advertising purposes. The Hearing Officer also recommended that all penalties be waived. However, the Hearing Officer also recommended the waiver of accrued interest prior to October 2, 1991, with the accrual of interest allowed only from that date. The Department corrects the Recommended Order as to the date October 2, 1991, finding that the assessment, having been sustained in the Recommended Order, showed the accrual of interest through rather than prior to October 2, 1991. This corrected date is used in all further references to the imposition or waiver of interest except in the direct quote of the Hearing Officer as cited in page 5. of this Final Order.

The Department, after a thorough review of the entire record in this case, adopts and incorporates by reference in this Final Order that portion of the Recommended Order which upheld both the sales and use tax assessment of

$4,017.76, and the accrual of interest from and including October 3, 1991, and which waived the penalties assessed the Petitioner. However, the Department rejects that portion of the Recommended Order which waived the accrued interest through October 2, 1991.

FINDINGS OF FACT

The Department hereby adopts and incorporates by reference in this Final Order the Findings of Fact 1 through 10 as set forth in the Recommended Order.

The Department adopts and incorporates in this Final Order all of Findings of Fact 11 except the last sentence which reads, "[o]n at least one occasion, Petitioner's secretary or Petitioner was advised that the transaction was tax exempt, and need not be collected." The Department's exception to this sentence is based on the absence of any corroborated, nonhearsay evidence which would support a finding that Petitioner's secretary was advised by the Department that the transaction was exempt and that tax need not be collected. See transcript (Tr.) of the hearing p. 80, lines 15 through 21; p. 81, lines 1 through 25; p.

82, lines 1 through 5. Consequently, this portion of the Findings of Fact 11 is not supported by substantial, competent evidence.

The Department adopts and incorporates in this Final Order Findings of Fact 12 through 13.

The Department rejects Findings of Fact 14 as being factually incorrect because such a finding described Petitioner, during telephone calls to the Department, as having inquired on "each occasion" whether tax should be collected on the rental of the billboard. The rejection of this finding is based on the testimony of Petitioner that, as to the telephone calls, he made "[o]nly one of them, to Miss Spivey," and in correction of that statement Petitioner added that he ". . . was on the speaker phone with one of them at the Maitland office." Tr., p. 114, lines 15 through 25. Consequently, Findings of Fact 14, to the extent described above, is not supported by competent, substantial evidence.

The Department adopts and incorporates by reference in this Final Order the remaining Findings of Fact 15 through 22.

CONCLUSIONS OF LAW

The Department hereby adopts and incorporates by reference in this Final Order the Conclusions of Law 23 through 27 in the Hearing Officer's Recommended Order.

The Department rejects Conclusion of Law 28 of the Recommended Order wherein the Hearing Officer concludes that "[t]he burden of proof in this case is on the Department to show that by a preponderance of the evidence that the sales tax assessment was proper." The Department first asserts that s. 120.575(2), F.S. (1991), limits the burden of proof ". . . to a showing that an assessment has been made against the taxpayer and the factual and legal grounds upon which the applicable department made the assessment." In connection with sales and use tax, under Part I, Chapter 212, F.S., an assessment is prima facie correct, as provided in ss. 212.12(5)(b), 212.0505(5), 212.14(1), Florida Statutes (1991).

Thus, after the Department provides the factual and legal basis for the assessment, the taxpayer then has the burden of proof, measured by a preponderance of the evidence, to show that the assessment was improper. Consequently, Conclusion of Law 28 is rejected. It is restated to express the conclusion that the assessment was supported by adequate factual and legal bases and that to overcome the presumption of correctness of the assessment the taxpayer must show by the preponderance of the evidence that the assessment was improper.

Finally, the Department rejects that portion of the Hearing Officer's Recommendation which seeks to waive interest which has ". . . accrued prior to October 2, 1991. . . ." This rejection is based on the requirement in s.

213.21(3), F.S. (1991), that interest be compromised only ". . . upon the grounds of doubt as to liability for or collectibility of such interest." Under the facts and circumstance of this case, where the assessment has been upheld, the interest which has accrued through October 2, 1991, can not be compromised without a finding of doubt as to either collectibility or of liability. Such a finding was not made. The Department does find that reasonable cause exists for waiver of the penalties.

RULINGS ON RESPONDENT'S EXCEPTIONS TO THE RECOMMENDED ORDER

Further, the Department adopts and incorporates by reference in this Final Order, to the extent modified herein, all the exceptions to the Findings of Fact and the Conclusions of Law as expressed in the Respondent's Exceptions To The Recommended Order.

CONCLUSION

Therefore, after a thorough review of the entire record in this matter, it is ORDERED:

1. That the assessment against Carl R. Glass d/b/a/ Osceola Forge as set forth in the assessment issued March 5, 1992, in an amount of sales and use tax of

   $4,017.76 is sustained;

   
   

2. That the portion of the Conclusion expressed in the Hearing Officer's Recommended Order which waived the interest which has accrued through October 2, 1991, is rejected. The interest accrued through October 2, 1991, as provided in the assessment, in the amount of $1,120.10, is sustained.

   
   

3. That the interest of $1.32 per diem, commencing October 3, 1991, which shall accrue on the tax until paid, as provided in the assessment, is sustained.

   
   

4. That the waiver of the penalties (in the amount of $1,004.52), as expressed in the Recommended Order, is sustained.

Any party to this Final Order has the right to seek judicial review of this Final Order as provided in Section 120.68, Florida Statutes, by the filing of a Notice of Appeal as provided in Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the Department in the Office of General Counsel, Post Office Box 6668, Tallahassee, Florida 32314-6668 and by filing a copy of the Notice of Appeal, accompanied by the applicable filing fees, with the appropriate District Court of Appeal. The Notice of Appeal must be filed within

30 days from the date this Final Order is filed with the Clerk of the Department.

DONE AND ENTERED in Tallahassee, Leon County, Florida this 6th day of October, 1993.

STATE OF FLORIDA DEPARTMENT OF REVENUE

L. H. FUCHS EXECUTIVE DIRECTOR

I HEREBY CERTIFY that the foregoing FINAL ORDER has been filed in the official records of the Department of Revenue this 6th day of October, 1993.

Copies furnished to:

Carl R. Glass

2749 North Orange Blossom Trail Kissimmee, Florida 34741

L.H. Fuchs Executive Director

Department of Revenue

104 Carlton Building Tallahassee, Florida 32399-0100

James McAuley

Assistant Attorney General The Capitol

Tallahassee, Florida 32399-1050

Linda Lettera General Counsel

Department of Revenue

204 Carlton Building Tallahassee, Florida 32399-1000

Attachments:

Hearing Officer's Recommended Order Respondent's Exceptions To Recommended Order Respondent's Proposed Substituted Order

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DISTRICT COURT OPINION

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 1995

CARL R. GLASS, NOT FINAL UNTIL THE TIME EXPIRES

d/b/a OSCEOLA FORGE TO FILE REHEARING MOTION, AND, IF FILED, DISPOSED OF.

Appellant,

CASE NO. 93-2537

v. DOAH CASE NO. 93-249

DEPARTMENT OF REVENUE, STATE OF FLORIDA,

Appellee.

/ Opinion filed February 17, 1995

Administrative Appeal from the Department of Revenue.

Christopher A. Detzel of Christopher A. Detzel, P.A., Maitland, for Appellant.

Robert A. Butterworth, Attorney General, James Mcauley and

Olivia Klein, Assistant Attorneys General, Tallahassee, for Appellee.

THOMPSON, J.,

Carl R. Glass d/b/a Osceola Forge ("Glass") appeals an administrative order of the Department of Revenue ("DOR") which assessed him sales taxes, use taxes and interest totaling $5,137.86. DOR recommended that the additional penalties be waived. we have jurisdiction 1/ and we affirm the order of the DOR.

Glass owned and operated a business in Osceola County, On the site of his business, he erected a two-sided billboard. The billboard was leased to customers for a monthly fee. The customers could either supply their own labor and material or contract the work out to third parties to create their advertising message. Glass did not collect taxes for the lease of the billboard. When he was audited by DOR, it assessed taxes, interest and penalties. Glass objected to the assessment and filed a protest letter.

A formal administrative hearing was held before a hearing officer from the Division of Administrative Hearings pursuant to section 120.57, Florida Statutes (1993). At the hearing, Glass testified that he called DOR's office and was

told that the lease was a tax exempt transaction and no taxes needed to be collected. He also presented affidavits from his secretary that she had contacted DOR's office in Maitland five or six times over a five year period and they told her that the taxes did not need to be collected for the billboard because it was a tax exempt transaction. Glass listened in on one conversation that his secretary had with Audit Supervisor Kathy Spivey of DOR's Titusville office. He said he heard Ms. Spivey say that no taxes were due on the transaction described by his secretary. Glass also presented his phone bills to show that phone calls had been placed from his office to DOR's offices. Glass testified that he had tried to call DOR's toll free number in Tallahassee and had not been able to get through because it was busy. Glass did not dispute that the transactions were taxable or that he would have charged and collected the taxes had he known they were due, but argued he should not have to pay the taxes because DOR employees gave him misinformation.

DOR presented testimony that Ms. Spivey had no recollection of the conversation with Glass or his secretary. She testified that she answered 300 to 400 calls a month. She also testified that any answer she gave to callers was based upon the facts they provided to her. The hearing officer recommended that Glass be required to pay the sales and use tax assessment and that the penalties and interest accrued be waived. He found that Glass presented insufficient credible evidence to support a claim that DOR made a misrepresentation of material fact. DOR's Executive Director issued a final order upholding the assessment of the sales taxes, use taxes, and accrued interest, and waiving the penalties contained in the assessment.

Glass argues on appeal that because he relied to his detriment upon misinformation supplied by DOR employees, the doctrine of collateral estoppel should prevent DOR from assessing the taxes, interest and penalties against him. See George W. Davis & Sons, Inc. v. Askew, 343 So.2d 1329, 1332 (Fla. 1st DCA 1977)(in some cases estoppel will be upheld against the assessment of back taxes if the case involves exceptional circumstances). Glass further argues that the State should be estopped because employees of DOR made misrepresentations as to material facts that were contrary to a later-asserted position; he relied upon those representations; and, he made a detrimental change in his position based upon DOR's representations. State Dept. of Revenue v. Anderson, 403 So.2d 397,

400 (Fla. 1981)(outlining the elements necessary for estoppel to be applied against a state agency) . we disagree because the leasing of the billboard was a taxable transaction that required him to pay the taxes mandated by Florida Statutes and Glass did not establish the elements of estoppel by sufficient competent evidence. Further, we find Glass did not prove that the state made a misrepresentation as to a material fact that was contrary to a later-asserted position. Finally, no exceptional circumstances existed.

Glass was aware this transaction was taxable because he originally paid taxes, but discontinued these payments after the alleged coversations with DOR employees. He stipulated before the hearing officer that the taxes were due. Glass had statutory notice he was liable for the taxes because "sale" is defined to include the sale or the lease of real property. s 212.031, Fla. Stat. (1993). Glass owed the money because he was in the business of renting real propert, i.e., the billboard. The only act that Glass relies upon to prevent payment of the taxes is the alleged oral representations made by DOR employees.

The hearing officer made the following findings. First, the hearing officer found that Glass did not present enough evidence to show that DOR made the representations that no taxes were to be paid. Glass only presented his self-serving testimony and affidavits from his secretary. Second, the hearing

officer found that Glass provided the initial representation, not DOR, therefore, estoppel was not appropriate. See T & L Management, Inc. v. Dep't of Transp., 497 So.2d 685, 687 (Fla. 1st DCA 1986). Even if DOR employees supplied this misinformation, the statements were statements of law based upon details supplied by Glass, not mistakes of material fact. Glass testified that he gave a scenario to the DOR employees and they told him whether the transaction was taxable. The finding that the state relied upon representations made by Glass is antithetical to Glass' position, particularly since estoppel is only applied against the state in exceptional circumstances. Anderson, 403 So.2d at 400-401. We must accept the hearing officer's findings as correct because appellate courts are prohibited from substituting their judgment for that of the hearing officer. Clark v. Dep't of Professional Regulation, Bd. of Medical Examiners, 463 So.2d 328, 330 (Fla. 5th DCA), review denied, 475 So.2d 693 (Fla. 1985).

For these reasons, we affirm DOR's decision AFFIRMED. GOSHORN, J., concurs.

SHARP, W., J., concurs specially, with opinion.

ENDNOTE 1/ Fla. R. App. P. 9.030(b)(1)(C)

CASE NO. 93-2537

SHARP, W., J., concurring specially.

1 concur in the result of this case. The hearing examiner who was the "fact-finder" here found: "Petitioner presented insufficient credible evidence to support his claim that DOR had misrepresented the taxability of the billboard rental. The list of telephone calls on Petitioner's telephone bills do not provide sufficient proof to establish that DOR made any representation to the taxpayer The hearing officer also found that Petitioner did not detrimentally change his position in reliance on any advice given by the DOR and that any reliance shown on the "limited tax advice" provided was not reasonable.

In short, the hearing officer found petitioner failed to establish the defense of estoppel asserted against the DOR. Those findings are supported by competent and substantial evidence, although contrary evidence was proffered by Petitioner. Under these circumstances, we must affirm. 1/

ENDNOTE

1/ 120.57(1)(b)10, Fla. Stat. (1993); Department of Transportation, Division of Administration v. Jirik, 498 So.2d 1253 (Fla. 1986); Pappas v. Department of Insurance and Treasurer, 568 So.2d 500, 501 (Fla. 3d DCA 1990), rev. denied, 577 So.2d 1328 (Fla. 1991); Heifetz v. Department of Professional Regulation, Division of Alcoholic Beverages and Tobacco, 475 So.2d 1277, 1281 (Fla. 1 st DCA

1 985); McDonald v. Department of Banking and Finance, 346 So. 2d 569 (Fla. 1st DCA 1977).

Docket for Case No: 93-000249

Orders for Case No: 93-000249