STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

S & W AIR VAC, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 95-2131

)

STATE OF FLORIDA, )

DEPARTMENT OF REVENUE, )

)

Respondent. )

)

RECOMMENDED ORDER

On May 7, 1996, a formal administrative hearing was held in this case in Orlando, Florida, before Daniel M. Kilbride, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gary Shader, Esquire

Shader and Wilson

1750 North Maitland Avenue Maitland, Florida 32751

For Respondent: James F. McAuley, Esquire

Elizabeth T. Bradshaw, Esquire Office of the Attorney General The Capitol, Tax Section Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

Whether Petitioner is required to pay sales tax on the commission its pays to property owners for the right to place and operate air and vacuum machines at various locations in central Florida.

PRELIMINARY STATEMENT

Following an audit of Petitioner's records, the auditor made an assessment against certain receipts for sales and use tax which was not collected or remitted to the state. Petitioner filed a Letter of Protest to the Respondent on August 9, 1994. On March 14, 1995, the Respondent issued its Notice of Decision in which it sustained the assessment. Petitioner disputed the decision and filed a petition for a formal administrative hearing on April 27, 1995.

This matter was referred to the Division of Administrative Hearings on May 2, 1995 and this proceeding followed. Discovery was initiated; and this matter was continued on two occasions at the request of the parties. The formal hearing was held on May 7, 1996.

At the hearing, Petitioner presented the testimony of one witness, Ronald Singer, Vice President, and offered no exhibits in evidence. Respondent offered the testimony of Deborah C. Hall, Tax Auditor, five exhibits were offered in evidence; Respondent's Exhibit Two was not admitted. A transcript of the hearing was prepared and was filed with the Clerk on May 28, 1996. The parties requested twenty days from the filing of the transcript in which to file proposed recommended orders. Petitioner has not filed a proposal as the date of this Recommended Order. Respondent filed its proposals on June 17, 1996.

Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the attached Appendix to Recommended Order, Case No. 95-2131.

FINDINGS OF FACT

1. Petitioner owns coin-operated air and vacuum machines, which it places at numerous convenience store and gas station locations throughout central Florida.

   
   

2. The State of Florida, Department of Revenue, is an executive agency of the State of Florida, which is statutorily charged with the administration and enforcement of Florida's sales tax laws.

   
   

3. The Department conducted an audit of Petitioner following the discovery of information developed during an audit of another company.

   
   

4. It was determined that Petitioner had never registered with the Department of Revenue for sales tax collection or payment. During the audit, the Department determined that Petitioner had not paid sales tax on its out-of- state purchases of air and vacuum machines and equipment valued at approximately

   $303,429.00. These machines were purchased for use in Florida. The Department assessed sales tax on these purchases. The Petitioner conceded that it owed sales tax on these purchases and did not contest that portion of the assessment. It has paid said taxes.

   
   

5. The Department assessed sales tax on payments made by the Petitioner to other companies for the right to place its machines at their business.

   
   

6. Petitioner places coin-operated air and vacuum machines on premises of the convenience stores and gas stations under a verbal contract at will in which the land owner receives a portion of the gross receipts from the operation of the machines.

   
   

7. Petitioner is solely responsible for the installation of the air and vacuum machines, including providing the electrical tie-in at the site of the machine.

   
   

8. The air and vacuum machines are mounted on a six hundred pound concrete pad and transported and placed on the convenience store property. The air and vacuum machines are portable, even after placement at a convenience store, and are removed if Petitioner determines that the location is not sufficiently profitable.

   
   

9. The air and vacuum machines are purchased by Petitioner and the air and vacuum machines are owned solely by Petitioner during the period that they are located on a convenience store's premises.

10. Petitioner is solely responsible for regular inspection of the air and vacuum machine and is solely responsible for maintenance of the machines.

    
    

11. Petitioner is solely responsible for cleaning the air and vacuum machines at all locations. Also, Petitioner is responsible for all repair work to the machines which are provided at no cost to the owner of the convenience store. Petitioner is entitled to ingress and egress from the property at any time to accomplish these repairs.

    
    

12. Petitioner is ultimately responsible for refunding any money to the store operator when an air and vacuum machine fails to work properly.

    
    

13. Petitioner is solely responsible for all licensing fees and taxes on the air and vacuum machines.

    
    

14. Petitioner carries liability insurance coverage on the air and vacuum machines.

    
    

15. On or about June 10, 1988, Petitioner entered into a written contact with Carse Oil Company, Inc., which owned convenience stores in the central Florida area, doing business as Ideal Food Stores. This agreement was in effect for a period of three or four years, including some years during the audit period, beginning September 1, 1988.

    
    

16. The agreement, entitled "Air/Water Vacuum Commission Agreement" (hereinafter Agreement) is a contract between Petitioner and Carse Oil Company, Inc., by which Petitioner agreed to place an air and vacuum machine on Carse Oil's property. The written Agreement with Carse Oil Company, Inc. provides for the monthly payment to be made on a date certain each month. The Carse Oil Agreement is complete and contains all of the terms of the contract between the parties as to the duties and obligations of each party under the contract.

    
    

17. This written Agreement is representative of the course of dealing with other businesses with which Petitioner entered oral agreements during the period of the audit. Like the Agreement, the oral agreements allowed Petitioner to place its machines at its own cost on the property of a convenience store.

    
    

18. The Petitioner does not currently have, and has not ever had any agreements in writing with its customers other than the written Agreement with Carse Oil.

    
    

19. Under the written and oral agreements, Petitioner was responsible for coming onto the property to repair its machines. Petitioner is also entitled to come onto the property to remove monies from the cash box located in the machine. Only Petitioner's employees held the key to the money box and were entitled to come onto the property any time to access the money box in the machine. None of Petitioner's customers has a key or other access to the money box located in each air and vacuum machine.

    
    

20. Petitioner is solely responsible for calculating the commission payment to a convenience store after collecting the money in the machine.

    
    

21. Petitioner is solely responsible for deciding whether to remove an air and vacuum machine from a convenience store's premises if it is unprofitable.

22. With the exception of one customer, Petitioner does not pay a separate amount to the convenience store for the electricity that is used in the operation of the air and vacuum machine.

    
    

23. Petitioner's agreements with its customers, including the Agreement with Carse Oil Company, provide for the convenience store to receive each month a percentage of the money collected in the previous month for the operation of the air and vacuum machine(s) located on the store's premises.

    
    

24. The air and vacuum machines are equipped with a coin counter.

    
    

25. Petitioner is solely responsible for periodically collecting the coins that have accumulated in each air and vacuum machine.

    
    

26. The percentage that Petitioner pays to the convenience stores under its agreements with them ranges from 25 percent to 50 percent and are negotiated on an individual basis. Petitioner pays a higher percentage to a convenience store where the revenues generated are relatively higher than the revenues generated by machines at other locations. The payment to the location owner is thus based upon the business derived at a particular location. Thus, as part of the business decision of payment for allowing placement of the machine, Petitioner evaluates the value of the location of the machine and payment is guided by the performance at the location.

    
    

27. Payment made by Petitioner is directly connected to the acquisition of the right of placement of the machine, and the location owner is not entitled to receive any compensation once a machine is removed from the premises.

    
    

28. The location owner has no responsibility for the cost of placing the machine, the costs of maintenance and cleaning the machine during its placement, the cost of repair of the machine during placement or responsibility for payment of insurance coverage of machines during placement. The location owner involvement is limited to authorization of the use of the property for placement of the machine.

    
    

29. The compensation or "commissions" are directly tied to payment for the right to place the machine on the premises of a convenience store.

    
    

30. The payment which Petitioner characterized as a revenue sharing arrangement, regardless of the title placed on the agreement between the parties, is based upon the right of placement of the machines on the property of another distinct business entity.

    
    

31. Petitioner paid out $613,125.00 during the years under audit based upon its written and oral agreements allowing for the placement of its equipment.

    
    

32. The Department assessed sales tax on the payments made as "commissions" to the parties where the machines were placed. The Department assessed sales tax due in the amount of $54,994.40, plus penalty in the amount of $16,539.12 and interest in the amount of $15,643.48, for a total due of

    $87,177.00. On April 15, 1994, Petitioner paid $18,206.61 on this amount leaving a balance due of $68,970.39.

    
    

33. Petitioner does not dispute the Department's mathematical calculations of the total sales dollars upon which the tax assessment is based.

34. Petitioner has not paid sales taxes on the monies it remitted to the convenience stores during the audit period.

    
    

35. Petitioner did not seek advice from the Department prior to the assessment as to whether sales tax should have been collected on the business transactions assessed by the Department.

    
    

    CONCLUSIONS OF LAW

    
    

36. The Division of Administrative Hearings has jurisdiction over the case and controversy pursuant to the provisions of Sections 72.011 and 120.575, Florida Statutes.

    
    

37. The Department of Revenue is an executive agency of the State of Florida, which is statutorily charged with the administration and enforcement of Florida's sales tax laws. The Department assessed tax against Petitioner under Section 212.031, Florida Statutes.

    
    

38. Petitioner contested the imposition of tax on the payments it made to various businesses, claiming that it did not pay for a license to use real property as that term is defined in Florida Statutes.

    
    

39. The statutory definition of the "license to use property" includes granting of a privilege to use a parcel of real property for any purpose. Section 212.031, Florida Statutes.

40. The current version of the statue states in pertinent part: (1)(a) It is declared to be the legislative

    intent that every person is exercising a

    taxable privilege who engages in the business of renting, leasing, letting, or granting a license for the use of any real property....

    * * *

    (1)(c) For the exercise of such privilege, as tax is levied in an amount equal to 6 per- cent of and on the total rent or license fee charged for such real property by the person charging or collecting the rental or license fee. The total rent or license fee charged for such real property shall include payments for the granting of a privilege to use or occupy real property for any purpose and shall include base rent, percentage rents,

    or similar charges. Such charges shall be included in the total rent or license fee subject to tax under this section whether or not they can be attributed to the ability of the lessor's or licensor's property as used or operated to attract customers.

    (2)(a) The tenant or person actually occupy- ing, using, or entitled to the use of any property from which the rental or license fee is subject to taxation under this section shall pay the tax to his or her immediate

    landlord or other person granting the right to such tenant or person to occupy or use such real property.

    
    

41. Sound statutory construction requires words to be accorded their plain and ordinary meaning. See Public Health Trust of Dade City v. Lopez, 531 So.2d 946, 949 (Fla. 1988) and State, Department of Administration v. Moore, 524 So.2d 704, (Fla. 1st DCA 1988). The phase "granting of a privlege...for any purpose" includes the privilege of using real property for the placement of equipment.

    
    

42. Florida Supreme Court long ago rejected the notion that a sharing of revenue from a machine owned by one party but placed in another party's business escaped a tax on the exercise of a privilege relating to the property involved. See Gay v. Supreme Distributors, 54 So.2d 805 (Fla. 1951). In the Supreme Distributors case, the court found that sharing revenues from usage of amusement games based upon a percentage of gross receipts from the machine represented an exercised of a taxable privilege, irrespective of claims of sharing revenues through a joint venture. Id. at 806. In fact, the court in Supreme Distributors specifically rejected the notion that sharing of revenues from a machine represented a joint venture. Id.

    
    

43. The Supreme Distributors decision indicates that the granting of a privilege, otherwise subject to tax, does not escape taxation when the compensation or payment for the privilege is based upon a percentage of the revenues derived in the business venture.

    
    

44. Like the Supreme Distributors case, Petitioner pays over a portion of the receipts collected form its machines and, as in Supreme Distributors, bases its argument in this case on the claim of "revenue sharing". In fact, if anything, the circumstances of the Supreme Distributors case presented an even stronger position for such an argument since the parties actually took the monies out of the machines together and split the proceeds at that time. The facts in this case demonstrate that the Petitioner has exclusive control over the machines and the removal of monies. The Supreme Distributors case and the instant circumstances are identical however in that in both cases the machine proceeds were split or distributed as a form of compensation. The decision clearly supports the imposition of tax in this case on the monies paid for the acquisition of the right to place the machine on the property of another.

    
    

45. The Petitioner in this case has presented no evidence to demonstrate that it did not enjoy a privilege to use real property belonging to a legally separate entity. Moreover, the record demonstrates that Petitioner has wholly failed to identify any reason for the payment of these monies other than the obvious quid pro quo, the exchange of money for the privilege to place a machine on the property. All of the evidence introduced demonstrates the payment represents compensation for the right of placement of the equipment of Petitioner. This is one form of a license to use property.

    
    

46. Petitioner contested the assignment based upon its claim that it was engaged a "revenue sharing arrangement". No exemption appears in Section 212.031(1), Florida Statutes, for use of property in a "revenue sharing" arrangement. Thus, even though such arrangement existed, it is subject to tax. Petitioner's claim that a revenue sharing arrangement exists, therefore, does not in itself represent a basis for avoiding the imposition of the tax.

    
    

47. Furthermore, based upon the uncontroverted facts, the Petitioner was not involved in a joint venture. The elements of a joint venture require 1) a

    community of interest in the performance of a common purpose 2) joint control or right of control 3) a joint proprietary interest in the subject matter 4) a right to share in the profits 5) a duty to share in any losses. See Austin v.

    Duval County School Board, 657 So.2d 945 (Fla. 1st DCA 1995). These elements are clearly absent from the relationship of Petitioner and the business it paid for the right to place it machines. In the instant case, Petitioner had exclusive responsibility over access to the monies collected in the machines.

    The business where the equipment was placed had no sharing in the profits of the business, only a percentage of revenues. Also, those businesses plainly did not share in loss from business operations. Florida courts have held that the absence of even one of the elements of a joint venture must be strictly construed against the existence of such a joint venture. Id. at 948 Thus, the facts in this case do not support the existence of a joint venture.

    
    

48. In the absence of such a joint venture, the evidence is clear that Petitioner acquired the right of use of the property for the placement of an air vacuum or like equipment.

    
    

49. Prior to 1986, Section 12.031, Florida Statutes, did not contain a provision imposing tax on engaging in the business of granting a license to use real property. The tax was imposed on the business of granting a privilege of renting, leasing, or letting real property. See Florida Revenue Commission v. Maas Brother, Inc., 226 So.2d 849 (Fla. 1st DCA 1969). The Legislature, through the enactment of Ch. 86-152, Laws of Florida, added to Section 212.031, Florida Statutes, imposition of tax on the privilege of engaging in the business of granting a license to use a building or parcel of real property for any purpose.

    
    

50. The 1986 Amendment states:

    
    

    Section 66. Section 212.031, Florida Statutes, as amended be section 2 of chapter 85-310, Laws of Florida, is amended to read:

    212.031 Lease or rental of or license in real property.

    (1)(a) It is declared to be the legislative intent that every person is exercising a tax- able privilege who engages in the business of renting, leasing, or letting, or granting a license for the use of any real property un- less such property is:

    * * *

    1. For the exercise of such privilege, a tax is levied in an amount equal to 5 percent of and on the total rent or license fee charged for such real property by the person charging or collecting the rental or rental fee,

    2. When the rental or license fee of any such real property is paid by way of property, goods, wares, merchandise, services, or other thing of value, the tax shall be at the rate of 55 percent of the value of the property, goods, wares, merchandise, services, or other thing of value.

    
    

51. This new language (in 1986) shows that the Legislature intended a substantive change in the law. The legislature is presumed not to pass

    meaningless legislation. Smith v. Prexo Technology and Prv. Admin., 427 So.2d

    182 (Fla. 1983). A statutory amendment is generally held to mean such a substantive change in Seddon v. Harpster, 403 So.2d 409, 411 (Fla 1981), the Supreme Court held:

    
    

    It is also presumed that when the legislature amends a statute, it intends to accord the statute a meaning different from that accorded it before the amendment

    [citation omitted].

    
    

52. The language used by the legislature in the 1986 amendment is clear. The Legislature is presumed to know the meaning of the words used and to have address its intent by using them in the enactment. S.R.G. Corporation v. Department of Revenue, 365 So.2d 687 (Fla. 1978). Statutory language is not to be assumed superfluous; a statute must be construed to give meaning to all words and phrases contained within the statute. Terrinoni v. Westward Ho!, 418 So.2d 1143 (Fla. 1st DCA 1982). The Legislature's election to use different words within the same statute should be viewed to convey different meanings within a statute. Department of Professional Regulation, Board of Medical Examiners v. Durranni, 455 So.2d 515, 518 (Fla. 1st DCA). Since the statute separately identifies the term "license to use property", the term should be given meaning based upon the plain meaning of the words contained in the statutory definition.

    
    

53. The Legislature is Section 64, Ch. 86-152, Laws of Florida , provided definition for the term "license" as used in Section 212.031, Florida Statutes. The term "license" is defined in Section 212.02(10)(I), Florida Statutes, as follows:

    
    

    1. "License" as used in this chapter with referenced to the use of real property, means the granting of a privilege to use or

       occupy a building or a parcel of real property for any purpose.

       
       

54. When the Legislature chooses a definition for a term, that definition is controlling over all other definitions or interpretations. Ervin v. Capital Weekly Post, 97 So.2d 464 (Fla. 1957); Op. Atty. Gen. Fla. 85-98 (1985); First National Bank of Miami v. Florida Industrial Commission, 16 So.2d 636 (1944). The definition chosen by the legislature for the term "license" encompasses granting either a privilege to use or occupy real property. This definition includes use....for any purpose.

    
    

55. The express addition of the granting of a license as an exercise of a taxable privilege represents the addition of a real property recognized at common law as follows:

    
    

    A license is distinguished from an easement in that a license is merely a personal right to use the property of another for a specific purpose, is not interest in the land and, therefore, may not be assigned or conveyed.

    Burdine v. Sewell, 92 Fla. 375, 109 So. 648

    (Fla. 1926).

    
    

56. This legislative change expanded the scope of the taxing statute to include a privilege tax on what was recognized at common law as a right to a

    nonexclusive use of property. See Tatum v. Dance, 605 So.2d 110 (Fla. 5th DCA 1992); See also: Florida Bar, Florida Real Property Practice I, Section 12.14 (1965). After the addition of the "license" language, no longer was the tax restricted to a "rent" tax requiring exclusive use or possession of the property. By expanding the tax from the requirement of a proprietary right in the property (lease or rental) to simply a use of the property, the legislature captured charges for "any purpose" relating to the right to use property.

    
    

57. The Legislature is presumed to know the law when enacting statutes. The legislative definition, noted above, is consistent with the common law meaning ascribed to the term "license". This definition indicates a license is a privilege, nor a property right. License is understood to represent a right to use property for a specific purpose and not an interest in the property. Tatum v. Dance, 605 So.2d 110 (Fla. 5th DCA 1992); Burdine v. Sewell, supra 92 Fla. 375, 109 So.648 (Fla. 1926); Jenkins v. Lyke, 19 Fla. 148, 45 Am. R. 19 (1882).

    
    

58. Administrative agencies are afforded wide discretion in interpreting the statutes which they administer. Braman Cadillacs, Inc. v. Dept of Highway Safety and Motor Vehicles, 584 So.2d 1047, 1050 (Fla. 1st DCA 1991). An agency's construction of its governing statutes and rules will be upheld unless clearly erroneous. Pershing Industries v. Dept. of Banking, 591 So.2d 991 (Fla. 1st DCA 1991); Motel 6, Operating L.P. v. Dept. of Business Reg., Div. of Hotels and Restaurants, 560 So.2d 1322, 1323 (Fla. 1st DCA 1990); Dept. of Professional Reg., Board of Medical Examiners v. Durranni, 455 So.2d 515,517 (Fla. 1st DCA 1984). Moreover, the interpretation given by an agency to statutory authority it is charged to administer will be upheld even if it is not the only reasonable interpretation of a statute. See Orange Park Kennel Club v. State Dept. of Business and Professional Regulation, 644 So. 2d 574, 576 (Fla. 1st DCA 1994); Durrani, 455 So.2d 515 (Fla. 1st DCA 1984). The agency's interpretation of the statute, found in Rule 12A-1.070, Florida Administrative Code, is itself a statement that a license use for a real property is taxable.

    
    

59. The plain meaning of the phrase granting of a privilege to use...property for any purpose is to encompass all privileges granted for the use of real property, without limitation. It is obvious that the plain meaning of the words "the granting of a privilege to use...real property for any purpose" means any and all privileges. The privileges covered by the statute would therefore include the obvious possibility of placement of a machine to conduct business from a location entered by grant of license.

    
    

60. Florida's courts have long recognized that the sales tax imposed under Section 212.031, Florida Statutes, is imposed upon the privilege of engaging in the business of leasing, renting or licensing the use of real property. Regal Kitchens, Inc. v. Dept. of Revenue, 641 So.2d 158, 162 (Fla. 1st DCA 1994); Florida Revenue Commission v. Maas Brothers, Inc., 226 So.2d 849 (Fla. 1st DCA 1969). The statutory use of the term "business" in Section 212.031, Florida Statutes, is made with reference to a very broad concept of what constitutes the privilege of engaging in the business of renting property. Regal Kitchens, Id. at 162.

    
    

61. The definition of the term "business" as found in Section 212.02(2), Florida Statutes (1993), states:

    (2) "Business" means any activity engaged

    in by any person, or caused to be engaged in by him, with the object of private or public gain, benefit, or advantage, either direct or indirect.

    
    

62. The Court in Regal Kitchens observed that the foregoing definition was "...broad enough to encompass many different forms of rental arrangements" in rejecting a claim that rental income paid to a partnership was exempt. The very same definition applies equally in the instant case. Petitioner has plainly made a business agreement which gives the company the right to place its air vacuum equipment on property that it does not own or control. While Petitioner apparently seeks to deny that it enjoys any privilege that a member of the public does not also enjoy, this assertion is plainly at odds with the facts. Petitioner enjoys the privilege of placing its machine on the property of another with the right to obtain a profit from the sales through its sue.

    Hence, the sales tax imposed on the business of granting a license to use property applies to the business transaction in this case.

    
    

63. Petitioner did not pay sales tax due under Section 212.031, for the privilege of placing its machines. Section 212.031(2)(a), Florida Statutes, requires payment by the person entitled to use of the property. It states:

(2)(a) The tenant or person actually occupying, using, or entitled to the use of any property the rental or license fee from which is subject to taxation under this section shall pay the tax to his immediate landlord or other person granting the right to such tenant or person

to occupy or use such real property.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Executive Director enter a Final Order denying the Petition contesting the assessment of tax and impose a sales and use tax audit assessment in the amount of $68,970.39, plus interest.

DONE and ENTERED this 28th day of June, 1996, 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 28th day of June, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2131

To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

Petitioner did not submit proposed findings of fact as of the date of this Order.

Respondent's Proposed Findings of Fact.

Accepted in substance: paragraphs 1-31.

COPIES FURNISHED:

Gary Shader, Esquire Shader and Wilson

1750 North Maitland Avenue Maitland, Florida 32751

James F. McAuley, Esquire Elizabeth T. Bradshaw, Esquire Office of the Attorney General The Capitol, Tax Section Tallahassee, Florida 32399-1050

Linda Lettera, General Counsel Deparment of Revenue

204 Carlton Building Tallahassee, Florida 32399-0100

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 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.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA, DEPARTMENT OF REVENUE TALLAHASSEE, FLORIDA

S & W AIR VAC, INC.,

Petitioner,

vs. DOR CASE NO. 96-23-FOF

DOAH CASE NO. 95-2131

FLORIDA DEPARTMENT OF REVENUE,

Respondent.

/

FINAL ORDER

This case is being considered based upon a Recommended Order, issued by a Hearing Officer assigned by the Division of Administrative Hearings. A copy of that Order is attached to this Final Order and is specifically incorporated by reference as if fully set forth herein. Accordingly, it is ORDERED THAT:

1.) The Statement of the Issue, the Preliminary Statement, and the Findings of Facts as set forth in the Hearing Officer's Recommended Order are adopted.

2.) The Conclusions of Law as set forth in the Hearing Officer's Recommended Order are adopted with the exception of the third sentence of Conclusion of Law 57, which is modified to read as follows:

This definition indicates a license is a privilege, not a property right.

3.) The sales and use tax assessment is sustained and the remaining balance of the assessment is due.

4.) The balance consists of $36,787.79 of tax, $16,539.12 of penalty, and

$17,433.40 of interest accrued through 4/15/94 and interest of $12.09 per day accruing from 4/15/94 until the balance of tax is paid.

Any party to this Order has the right to seek judicial review of the Order pursuant to section 120.68, F.S., by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the Department in the Office of the 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 Order is filed with the Clerk of the Department.

DONE AND ENTERED in Tallahassee, Leon County, Florida this 26th day of September, 1996.

STATE OF FLORIDA DEPARTMENT OF REVENUE

L. H. FUCHS EXECUTIVE DIRECTOR

CERTIFICATE OF FILING

I HEREBY CERTIFY that the foregoing Final Order has been filed in the official records of the Department of Revenue, this 26th day of September, 1996.

JUDY LANGSTON AGENCY CLERK

Attachment: Hearing Officer's Recommended Order COPIES FURNISHED:

Daniel M. Kilbride, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Gary Shader, Esquire Shader and Wilson

1750 North Maitland Avenue Maitland, Florida 32751

James F. McAuley, Esquire Assistant Attorney General Tax Section

Department of Legal Affairs The Capitol

Tallahassee, Florida 32399-1050

Rick H. McClure

Assistant General Counsel Department of Revenue

P.O. Box 6668

Tallahassee, Florida 32314-6668

Docket for Case No: 95-002131

Orders for Case No: 95-002131