STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTIAN INTERACTIVE NETWORK, ) INC., )

)

Petitioner, )

)

vs. ) CASE NO. 95-2064

)

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 January 23, 1996, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Gregory B. Darby, President and CEO1

Christian Interactive Network, Inc.

505 Northwest 65th Court, Suite 101 Fort Lauderdale, Florida 33309

For Respondent: Tracy L. Allen, Esquire

Department of Revenue Post Office Box 6668

Tallahassee, Florida 32314-6668 STATEMENT OF THE ISSUE

At issue is whether petitioner's application for a consumer's certificate of exemption as a religious institution should be approved.

PRELIMINARY STATEMENT

On January 30, 1995, petitioner filed an application with respondent, Department of Revenue (Department), for a consumer's certificate of exemption as a religious institution. The Department, following its review of the application, issued a notice on March 28, 1995, whereby it proposed to deny petitioner's application. Petitioner timely requested a formal hearing to contest the Department's decision, and the matter was referred to the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing Gregory B. Darby testified on behalf of petitioner, and its exhibits 1 through 9 and 11 were received into evidence. The Department called David Sands, as a witness, and its exhibits 1 through 4 were received into evidence.

The transcript of hearing was filed February 6, 1996, and the parties were initially accorded twenty days from that date to file proposed recommended orders; however, a petitioner's request that date was ultimately extended to March 8, 1996. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. Both parties filed proposed recommended orders in a timely manner, and the proposed findings of fact contained within the parties proposed orders are addressed in the appendix to this recommended order.

FINDINGS OF FACT

Fundamental findings

1. Petitioner, Christian Interactive Network, Inc., is a non-profit corporation exempt from tax under Section 501(c)(3) of the Internal Revenue Code.

   
   

2. Petitioner's articles of incorporation provide that it is organized "[t]o operate, manage, run and otherwise do and perform those acts and things appropriate and proper for the conduct of the management and operation of a computer network, including, but not limited to the performance of services and installation or construction of the network, and purchase or writing of programing necessary to place such subsystem within the national and international computer information network system. Such computer network shall be and it is the intent hereof that the network be operated for the express purpose of Christian information and data access and for the purposes of glorifying God without personal financial gain as a motivating factor."

   
   

3. To carry out its corporate purpose, petitioner leases approximately 3,000 square feet of office space at Suite 101, 505 Northwest 65th Court, Fort Lauderdale, Florida, wherein it maintains fifteen computers that are linked via the telephone network with the Internet.

   
   

4. From its office location, petitioner provides an "on-line," "virtual area where people from around the world can gather . . ." in a computer networking area. There, petitioner organizes the data and electronic format for its on-line service, places leading ministries on-line, and monitors its programs and responses.

   
   

5. Petitioner has no ministers on staff, but considers itself a "pathway" to the leading ministries by placing their program on-line, and by providing space for open forum discussion on Christian issues. Access to petitioner's resources and information is available through Internet access provided by commercial on-line services, Free-net on-line services, public access areas at libraries, and other providers or sources of Internet access.

   
   

6. The religious activities petitioner presents on-line are of a character or nature that would qualify as "religious services and activities" under the "religious institutions" exemption provided by Section 212.08(7)(o)2, Florida Statutes; however, participants in petitioner's on-line service do not physically meet at petitioner's offices to participate in religious services, petitioner does not provide any service to physically transport its members or participants, and petitioner was not shown to be a "governing or administrative office[] . . . to assist or regulate the customary activities of religious organizations or members."

   The exemption at issue

   
   

7. Here, petitioner has requested a consumer's certificate of exemption as a religious institution under the provisions of subsection 212.08(7)(o)2, Florida Statutes. Pertinent to this case, that subsection provides:

   
   

   1. The provisions of this section authorizing exemptions from tax shall be strictly defined, limited, and applied in each category as follows:

      1. "Religious institutions" means churches, synagogues, and established physical places for worship at which nonprofit religious

         services and activities are regularly conducted and carried on. The term "religious institu- tions" includes nonprofit corporations the

         sole purpose of which is to provide free transportation services to church members, their families, and other church attendees. The term "religious institutions" also includes state, district, or other governing or administrative offices the function of which is to assist or regulate the customary activities of religious organizations or members. 2/

         
         

8. It is petitioner's position that usage of computer on-line services, the so called Cyberspace or information super highway, is part of a rapidly changing technological environment wherein it provides an interactive meeting place to serve the spiritual needs of participants, nationally and globally, who might otherwise be unable to physically assemble. Such, petitioner contends, qualifies it as a "physical place[] of worship," a "provide[r] of free transportation services to church . . . attendees," or a "governing or administrative office[] the function of which is to assist or regulate the customary activities of religious organizations or members."

   
   

9. Contrasted with petitioner's contention, the Department, consistent with the statutory mandate that the exemption for "religious institutions" be "strictly . . . limited" to that defined by the law, reads the provisions of subsection 212.08(7)(o)2a to apply only when (1) there exists an established physical place of worship, i.e., a "bricks and mortar" facility, (2) the organization provides physical transportation for church members or attendees, or (3) that the provider, who claims to be a "governing or administrative office" whose "function is to assist or regulate the customary activities of religious organizations or members," be part of a larger organization and, within the hierarchy of that larger organization, assist or regulate the activities of those beneath it in the organizational hierarchy. Such reading is consistent with the literal import of subsection 212.08(7)(o)2a, and to the extent the provisions of that subsection relating to "other governing or administrative offices" may be unclear, is a reasonable interpretation of such provision.

   
   

   CONCLUSIONS OF LAW

   
   

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

11. Here, petitioner is seeking approval of an application for a consumer's certificate of exemption as a religious institution, pursuant to subsection 212.08(7)(o)2a, Florida Statutes. As the applicant, petitioner "carries the 'ultimate burden of persuasion' of entitlement." Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 787 (Fla. 1st DCA 1981).

    
    

12. Pertinent to this case, subsection 212.08(7)(o)2 provides:

    
    

    1. The provisions of this section authorizing exemptions from tax shall be strictly defined, limited, and applied in each category as follows:

       1. "Religious institutions" means churches, synagogues, and established physical places for worship at which nonprofit religious services and activities are regularly con- ducted and carried on. The term "religious institutions" includes nonprofit corporations the sole purpose of which is to provide free transportation services to church members, their families, and other church attendees.

          The term "religious institutions" also includes state, district, or other governing or administrative offices the function of which

          is to assist or regulate the customary

          activities of religious organizations or members.

          
          

13. As noted previously, the Department, consistent with the statutory mandate that the exemption for "religious institutions" be "strictly . . . limited" to that defined by the law, reads the provisions of subsection 212.08(7)(o)2a to apply only when (1) there exists an established physical place of worship, i.e., a "bricks and mortar" facility, (2) the organization provides physical transportation for church members or attendees, or (3) that the provider, who claims to be a "governing or administrative office" whose "function is to assist or regulate the customary activities of religious organizations or members," be part of a larger organization and, within the hierarchy of that larger organization, assist or regulate the activities of those beneath it in the organizational hierarchy. Such reading is consistent with the literal import of subsection 212.08(7)(o)2a, and to the extent the provisions of that subsection relating to "other governing or administrative offices" may be unclear, is a reasonable interpretation of such provision.

    
    

14. Generally, an administrative construction of a statute by an agency responsible for its administration is entitled to great deference and should not be overturned unless clearly erroneous. Department of Environmental Regulation

    v. Goldring, 477 So.2d 532 (Fla. 1985), All Seasons Resorts, Inc. v. Division of Land Sales, Condominiums and Mobile Homes, 455 So.2d 544 (Fla. 1st DCA 1984), and Sans Souci v. Division of Land Sales, and Condominiums, 421 So.2d 623 (Fla. 1st DCA 1982). Moreover, the Agency's interpretation does not have to be the only one or the most desirable one; it is enough if it is permissible. Florida Power Corp. v. Department of Environmental Regulation, 431 So.2d 684 (Fla. 1st DCA 1983). However, where the legislative intent as evidenced by a statute is clear and unambiguous, interpretation is unnecessary, and the forum need only give effect to the plain meaning of its terms. Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693 (1918).

15. The fundamental rules governing construction applicable to the instant case were aptly set forth in Florida State Racing Commission v. McLaughlin, 102 So.2d 574, 575 (Fla. 1958), as follows:

    
    

    It is elementary that the function of the Court is to ascertain and give effect to the legislative intent in enacting a statute.

    In applying this principle certain rules have been adopted to guide the process of judicial thinking. The first of these is that the Legislature is conclusively presumed to have a working knowledge of the English language and when a statute has been drafted in such a manner as to clearly convey a specific meaning the only proper function of the Court is to effectuate this legislative intent.

    * * *

    When construing a particular part of a statute it is only when the language being construed in and of itself is of doubtful meaning or doubt as to its meaning is engendered by apparent inconsistency with other parts of the same or closely related statute that any matter extrinsic the statute may be considered by the Court in arriving at the meaning of the language employed by the Legislature.

    
    

    Accord, State v. State Racing Commission, 112 So.2d 825 (Fla. 1959); and Van Pelt v. Hillard, 75 Fla. 792, 78 So. 693 (Fla. 1918). To the same effect were the observations of the court in Newberger v. State, 641 So.2d 419, 420 (Fla. 2d DCA 1994), as follows:

    
    

    The rules of statutory construction require that courts give statutory language its plain and ordinary meaning, unless the words are defined in the statute. Southeastern Fisheries Association, Inc. v. Department of Natural Resources, 453 So.2d 1351 (Fla. 1984).

    If necessary, the plain, ordinary meaning of

    a word can be found by looking in a dictionary. Gardner v. Johnson, 451 So.2d 477 (Fla. 1984).

    
    

16. Here, the words chosen by the Legislature are not archaic or obscure, and the Department's reading of subsection 212.07(o)2a comports with its literal meaning. To the extent that portion of the subsection relating to "other governing or administrative offices" may afford pause for interpretation, the Department's interpretation is clearly reasonable, and therefore permissible. Consequently, petitioner has failed to demonstrate its entitlement to the requested exemption.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department enter a final order denying petitioner's application for a consumer's certificate of exemption as a religious institution.

DONE AND ENTERED this 25th day of April 1996 in Tallahassee, Leon County, Florida.

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 25th day of April 1996.

ENDNOTES

1/ Petitioner was represented at hearing by Mr. Darby. Subsequent to hearing, Frederick C. Heidgerd, Esquire, entered his appearance of record, and filed a proposed recommended order on behalf of petitioner.

2/ Subsection 212.08(7)(o)2a also defines the term "religious institutions" for purposes of the exemption to include certain nonprofit corporations that operate a Florida television station or provide regular religious services to Florida state prisoners. Petitioner does not qualify or seek qualification under these provisions. Rather, petitioner seeks the "religious institutions" exemption based on its contention that through the computer network programs it provides on the Internet it falls within the statutory definition of "religious institutions" for (1) "churches, synagogues, and established physical places of worship at which nonprofit religious services and activities are regularly conducted and carried on," (2) "nonprofit corporations the sole purpose of which is to provide free transportation services to church members, their families, and other church attendees," or (3) "state, district, or other governing or administrative offices the function of which is to assist or regulate the customary activities of religious organizations or members."

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 3.

2. Addressed in paragraph 1.

3. Accepted that petitioner's activities consist of a series of forums on the Internet and addressed in paragraphs 2, 4, and 5. Remainder of sentence rejected as being aspirational only and not shown to have occurred.

4. Addressed in paragraph 2.

5 through 7. Addressed in endnote 2.

1. Addressed in paragraph 4.

2. Addressed in paragraph 6.

3. Addressed in paragraph 3.

11 and 12. Accepted, but unnecessary detail.

13. Addressed in paragraph 5.

14 through 16. Accepted, but unnecessary detail.

17 and 18. Addressed in paragraph 5, otherwise unnecessary detail.

19. Addressed in paragraph 4.

20 through 22. Accepted, but unnecessary detail.

23 and 24. Addressed in paragraph 9.

25. Addressed in paragraph 6.

26 and 27. Addressed in paragraph 9.

28 through 30. Addressed in paragraph 8.

31. Addressed in paragraph 4.

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

1. Addressed in paragraph 3.

2. Addressed in paragraph 1.

3. Addressed in paragraphs 4 and 5.

4. Addressed in paragraph 2.

5 through 7. Addressed in endnote 2.

1. Addressed in paragraph 4.

2. Addressed in paragraph 6.

3. Addressed in paragraph 3.

11 through 16. Accepted, but unnecessary detail.

17 through 19. Addressed in paragraphs 4 and 5.

1. Accepted, but unnecessary detail.

2. Addressed in paragraph 5 or unnecessary detail.

3. Accepted, but unnecessary detail.

COPIES FURNISHED:

Tracy L. Allen, Esquire Department of Revenue Post Office Box 6668

Tallahassee, Florida 32314-6668

Mr. Gregory B. Darby Christian Interactive Network

505 Northwest 65th Court, Suite 101 Fort Lauderdale, Florida 33309

Frederick C. Heidgerd, Esq. Heidgerd, Martin & Bennis, P.A. 800 SE Third Avenue, Suite 300 Fort Lauderdale, Florida 33316

Linda Lettera, General Counsel Department of Revenue

Post Office Box 6668 Tallahassee, Florida 32314-6668

Larry Fuchs, Executive Director Department of Revenue

104 Carlton Building Tallahassee, Florida 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 ten 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: 95-002064

Orders for Case No: 95-002064