STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE ) AND CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0567

)

DICK JOHNSON NURSERY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Ft.

Myers, Florida, on April 29, 1994. Robert E. Meale, Hearing Officer of the Division of Administrative Hearings, participated from Tallahassee by videoconference.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Attorney John S. Koda

515 Mayo Building

Tallahassee, Florida 32399-0800 For Respondent: no appearance

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent is liable for citrus excise taxes and, if so, whether Respondent should be subject to an administrative fine or revocation or suspension of its certificate of nursery registration.

PRELIMINARY STATEMENT

By Administrative Complaint filed December 2, 1993, Petitioner alleged that Respondent operates a citrus nursery and holds a certificate of registration for the citrus nursery operation. The Administrative Complaint alleges that Respondent failed to pay a total of $18,194.55 in citrus excise taxes for the years 1989-1991. As a result of this failure, the Administrative Complaint alleges that Respondent's certificate of registration is subject to suspension or revocation until all excise taxes have been paid and Respondent is subject to an administrative fine of not more than $5000 per violation.

By letter dated December 20, 1993, Respondent denied the material allegations and implicitly demanded a hearing.

At the hearing, Petitioner called one witness and offered into evidence one exhibit, which was admitted.

The transcript was filed May 9, 1994. Petitioner filed a proposed recommended order, and its proposed findings are adopted or adopted in substance.

FINDINGS OF FACT

1. Respondent is Dick Johnson, who does business as Dick Johnson Nursery. Respondent operates a citrus nursery and holds a nursery certificate issued by Petitioner. Respondent's registration number is 4720810.

   
   

2. In 1989, Respondent made taxable transfers or movements of 55,000 trees subject to the citrus excise tax. During the relevant time period, the tax was no less than $0.10 per tree, so the tax due was $5500.

   
   

3. In 1990, Respondent made taxable transfers or movements of 1406 trees subject to the citrus excise tax. The tax was no less than $0.1250 per tree, so the tax due was $175.75.

   
   

4. In 1991, Respondent made taxable transfers or movements of 62,594 trees subject to the citrus excise tax. The tax was no less than $0.20 per tree, so the tax due was $12,518.80.

   
   

5. By letter dated July 1, 1993, Petitioner submitted to Respondent an assessment in the total amount of $18,194.55 with respect to the subject unpaid citrus excise taxes. Respondent refused to pay the assessment and filed a written protest.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

   
   

7. Section 581.193(1) and (2) imposes an excise tax, in the amounts set forth in the findings of fact, on the "sale or distribution" of citrus nursery stock or "movement" of citrus plants grown by a commercial citrus fruit producer into the producer's grove.

   
   

8. Pursuant to Section 581.193(3)(b), the excise tax is payable on the first day of the month following the movement, sale, or distribution.

   
   

9. Section 581.193(3)(c) provides that Petitioner may suspend the nursery registration of anyone who fails to pay the tax within 34 days from when the tax was due. This section states that the suspension shall remain in force until all excise taxes have been paid.

   
   

10. Additionally, Section 581.211(3)(a) provides that any person who violates any provision of Chapter 581 is subject to an administrative fine of not more than $5000 per violation and suspension or revocation of his or her certificate of registration.

    
    

11. Petitioner has proved that Respondent made taxable transfers or movements of citrus trees subject to an excise tax totalling $18,194.55 and has failed to pay these taxes after lawful demand.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order finding Respondent liable for unpaid excise taxes of $18,194.55, imposing an administrative fine of $3000, and suspending Respondent's certificate until these amounts are paid in full.

ENTERED on May 25, 1994, in Tallahassee, Florida.

ROBERT E. MEALE

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 on May 25, 1994.

COPIES FURNISHED:

Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810

Richard Tritschler, General Counsel Department of Agriculture

The Capitol, PL-10 Tallahassee, FL 32399-0810

Attorney John S. Koda

515 Mayo Bldg. Tallahassee, FL 32399-0800

Dick Johnson

P.O. Box 850 Immokalee, FL 33934

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: 94-000567

Orders for Case No: 94-000567