EDWARD DICKINSON, d/b/a )
HAINES CITY TREE FARM, )
)
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 October 6, 1994, in Winter Haven, Florida. The following appearances were entered:
APPEARANCES
For Petitioner: John S. Koda, Esquire
515 Mayo Building
Tallahassee, Florida 32399-0800
For Respondent: D. Edward Dickinson
Haines City Tree Farm Post Office Box 1203
Haines City, Florida 33845-1203 STATEMENT OF THE ISSUES
Whether Respondent, a registered nurseryman, failed to pay citrus excise taxes for the calendar year 1992 in the amount of $4,319.00.
PRELIMINARY STATEMENT
On, December 2, 1993, the Florida Department of Agriculture and Consumer Services served an Administrative Complaint upon Haines City Tree Farm alleging that Respondent owed Petitioner the sum of $4,319.00 for failure to pay citrus excise taxes. Respondent filed an answer denying the claim and raised an affirmative defense which was essentially in the form of a counter-claim against the Department. Subsequently, this matter was referred to the Division of Administrative Hearings on June 9, 1994 to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes. This hearing followed.
At the hearing, the Respondent and Petitioner stipulated to facts alleged in the Amended Administrative Complaint. As a result, the Department deemed it unnecessary to call witnesses or submit other evidence for its case in chief.
Respondent testified on his own behalf, and called three witnesses, Wayne Gray,
Richard Dicks, and Elise Bonwit Dickinson. The following items were admitted into evidence at final hearing: Respondent's Exhibit 1: 10/1/90 letter to Mallory E. Horne from Douglas Lockwood, III and Respondent's Exhibit 2: Excerpt from "Citrus Industry", January, 1993.
The record was left open until October 20, 1994, to allow Respondent to submit affidavits from David Snellgrove and Lawrence Reed. The affidavit of Lawrence Reed was filed on October 14, 1994 and the affidavit of David L. Snellgrove, dated 10/11/94, was filed with the clerk on October 24, 1994. The transcript of the hearing was filed on October 31, 1994.
The parties were given until October 31, 1994, to file Proposed Recommended Orders. Petitioner filed its proposed order on October 31, 1994. Respondent filed a proposed findings of fact by letter received October 26, 1994.
FINDINGS OF FACT
The Department is an agency of the State of Florida established pursuant to Section 20.14, Florida Statutes. Pursuant to Section 581.021, Florida Statutes, the Department is charged with the administration and enforcement of Chapter 581, Florida Statutes, governing the plant industry.
Respondent operates as a nurseryman at his place of business in Haines City, Florida, doing business as Haines City Tree Farm.
Respondent is the holder of a certificate of registration as a nurseryman issued by the Department.
Before any nurseryman shall sell or distribute, or offer to sell or distribute, any nursery stock in this state, he shall make application to the Department to obtain a certificate of registration.
An excise tax is levied per plant on the sale of citrus nursery stock to any commercial citrus fruit producer or for resale to a citrus fruit producer by any nurseryman to whom a certificate of registration has been issued by the Department.
The excise tax is also imposed upon citrus plants grown by a commercial citrus fruit producer for his own use for movement within or into a citrus grove or for establishing new citrus plantings.
The excise tax shall be reported and paid to the Department by the person to whom the certificate of registration is issued.
All nurserymen operating certified nurseries shall submit monthly tax reports and remit the related citrus excise tax to the Department by the 15th day following the end of each calendar month.
Respondent has failed to pay a total of $4,319.00 in citrus excise taxes owned to the Department for 1992.
By reason of the foregoing, Respondent has violated the provisions of Section 581.193, Florida Statutes, and Rule 5B-50.005, Florida Administrative Code.
Respondent offered testimony in which he attempted to prove that in 1986, in response to the citrus canker outbreak, the Petitioner burned his
entire nursery stock of approximately 26,000 trees and 40,000 liners; that Respondent sought compensation from Petitioner but the Petitioner refused to allow him to file proper compensation forms because he had not received a burn order from them; and is seeking an award of $87,000 in the form of a counter- claim and set-off in this proceeding.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.
Nurserymen who sell or distribute nursery stock in this state are licensed by the Department of Agriculture and Consumer Services. Section 581.131, Florida Statutes.
Section 581.131, Florida Statutes, provides in pertinent part:
Before any nurseryman shall sell or distribute, or offer for sale or for distribution, any nursery stock in this state, he shall apply to the director of the division, on forms supplied by the
division, for a certificate of registration.
Section 581.193, Florida Statutes, provides in pertinent part:
There is hereby levied and imposed an excise tax of 20 cents per plant on the sale or distribution of citrus nursery stock, ... to any commercial citrus fruit producer or for resale to a citrus fruit producer, by any nurseryman, stock dealer, agent, or plant broker to whom a certificate of registration has been issued by the division.
The excise tax imposed under subsection (1) shall also be levied and imposed on citrus plants grown by a commercial citrus fruit producer for his own use for movement within or into a citrus grove, or for establishing a new citrus planting. For the purpose of this subsection, the excise tax shall be levied and imposed at the time of movement. ...
(3)(a) The excise tax imposed by this section shall be reported to the division by the person to whom the certificate of registration is issued
and shall be certified as true and correct on forms to be prescribed and furnished by the division.
Payment of the excise tax shall accompany the return . . .
The excise tax levied and imposed by this section shall be due and payable on the first day of the month following the movement, sale, or distribution date on which the tax is levied and imposed . . .
When any person required to make any return or pay any tax imposed by this section fails to file
the return or pay the taxes within 14 days of the 20th day of the month in which the return or the tax is to be remitted, in addition to all other penalties provided by law, the division may suspend, in accordance with chapter 120, the registration granted under s. 581.131. The suspension of the registration shall remain in force until all delinquent returns have been filed and all excise taxes have been paid.
Rule 5B-50.005(2), Florida Administrative Code, provides that all nurserymen operating certified nurseries shall submit monthly tax reports and remit the related citrus excise tax to the Department by the 15th day following the end of each calendar month.
Section 581.141, Florida Statutes, provides in pertinent part:
REVOCATION AND SUSPENSION.- If it is determined by the department that any nurseryman, . . . is selling or offering for sale, or is distributing
or offering to distribute, nursery stock in violation of the provisions of this chapter and the rules adopted under this chapter, . . . the department by revoke or suspend his certificate of registration . . .
FINES; PROBATION.-
1. The department may, after notice and hearing, impose a fine not exceeding $5,000 or probation not exceeding 12 months, or both, for the violation of any or the provisions of this chapter or the rules adopted under this chapter or any person, nurseryman
. . .
2. The imposition of a fine or probation pursuant to this subsection may be in addition to or in lieu of the suspension or revocation of a certificate of registration or certificate of inspection.
Whenever any administrative order has been made and entered by the department imposing a fine upon any person pursuant to this subsection, the order shall specify the amount of the fine and the time limit for payment, which shall not exceed 15 days. Upon failure to pay the fine within such time, the certificate of registration or certificate of inspection of the person may be suspended or revoked without further hearing; and a fine of $100 per day may be imposed for each day the violation continues.
The Department has the burden of proving the allegations within the Administrative Complaint, and establishing a basis for an administrative fine or lesser penalties it seeks to impose on Respondent, by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
The facts stipulated by the parties establish that Respondent has failed to pay a total of $4,319.00 in citrus excise taxes owned for the calendar year 1992.
Respondent's failure to pay such taxes is a violation of Section 581.193, Florida Statutes, and Rule 5B-50.005, Florida Administrative Code.
Respondent's attempt to seek compensation by this tribunal in the form of a counter-claim and set-off for his alleged damages as a result of the destruction of his nursery stock in 1986 is misplaced. In 1989, the Florida Legislature created Chapter 602, Florida Statutes, in response to the citrus canker eradication program which began in 1984. The act provided that the administrative procedure this act created would be the sole and exclusive remedy and procedure to compensate claimants for destruction of citrus nursery plants. If Respondent has been wrongfully denied a clear point of entry to the remedy provided in that law, Respondent must seek redress through the courts. However, redress of his grievance is not available through this administrative forum, at this time.
