STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

On January 29, 2009, an administrative hearing in this case was held by video teleconference between Tallahassee and Orlando, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Rachel W. Clark, Esquire

Office of the Attorney General The Capitol - Tax Section Tallahassee, Florida 32399-1050

For Respondent: (No appearance)

STATEMENT OF THE ISSUE

The issue in the case is whether the allegations of the Administrative Complaint for Revocation of Certification of Registration are correct.

PRELIMINARY STATEMENT

By Administrative Complaint dated October 23, 2008, the Department of Revenue (Petitioner) alleged that L.V. World, Inc. (Respondent), failed to file tax returns and remit sales taxes as required by Chapter 212, Florida Statutes (2008).1 The Respondent disputed the allegations of the complaint and requested a formal hearing. By letter dated October 29, 2008, the Petitioner forwarded the request to the Division of Administrative Hearings, which scheduled and conducted the proceeding.

At the hearing, the Petitioner presented the testimony of one witness and had Exhibits numbered 1 through 6 admitted into evidence. There was no appearance made at the hearing on behalf of the Respondent.

No transcript of the hearing was filed. The Petitioner filed a Proposed Recommended Order that has been considered in the preparation of this Order.

FINDINGS OF FACT

1. At all times material to this case, the Respondent operated a used car dealership at 1014 West Central Boulevard, Orlando, Florida, 32805.

2. At all times material to this case, the Respondent's registered corporate agent was identified as Jennifer Hamilton, 3517 Domino Drive, Orlando, Florida, 32805.

3. Florida law requires specified persons conducting business within the state to register with the Petitioner and to obtain a certificate of registration essentially for purposes of tax collection.

4. As a dealer, the Respondent was required to register with the Petitioner and received Certificate of Registration No. 58-8011915294-5 from the Petitioner.

5. As a dealer, the Respondent was required to collect sales and use taxes from purchasers and to submit monthly tax returns and collected taxes to the Petitioner.

6. The Respondent filed proper tax returns, but failed to remit taxes received for the following months: September 2004, October 2004, December 2004, January 2005 through October 2005, December 2005, March 2007 through July 2007, and September 2007 through December 2007.

7. The unremitted taxes totaled $21,194.32.

   
   

8. Based on the Respondent's failure to remit the taxes, on July 22, 2008, the Petitioner assessed a penalty of $3,271.64 pursuant to Subsection 212.12(2), Florida Statutes.

9. Based on the Respondent's failure to remit the taxes, the Petitioner assessed interest charges of $4,304.62 (as of July 22, 2008) pursuant to Subsection 212.12(3), Florida Statutes. The interest charges continue to accrue until they are paid.

10. The Respondent failed to file tax returns for the months of January 2008 through July 2008. Pursuant to Subsection 212.12(5), Florida Statutes, the Petitioner assessed an estimated tax liability of $3,500.00 against the Respondent.

11. Pursuant to Subsection 212.15(4), Florida Statutes, the Petitioner has recorded warrants in the public records of Orange County, Florida, for the unpaid taxes.

12. Pursuant to Subsection 212.18(3)(d), Florida Statutes, the Petitioner issued a Notice of Conference of Revocation of Certificate of Registration dated July 30, 2008, and an informal conference was conducted on September 4, 2008. No one appeared at the conference on behalf of the Respondent. The Petitioner thereafter filed the Administrative Complaint underlying this proceeding.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat.

14. At all times material to this case, the Respondent was a "dealer" as defined at Subsection 212.06(2)(a), Florida Statutes, who was required to register with the Petitioner, to collect sales and use taxes on behalf of the state, and to remit them to the Petitioner on a monthly basis. § 212.06, Fla. Stat.

15. Pursuant to Subsections 212.15(1) and (2), Florida Statutes, the collected taxes are designated as state funds from the point of collection, and the intentional failure to remit the funds constitutes theft of state funds.

16. The evidence established that the Respondent failed to file the required tax returns and to remit the tax receipts as specifically identified herein.

17. Section 212.18, Florida Statutes, provides in relevant part as follows:

    212.18 Administration of law; registration of dealers; rules.--

    
    

    * * *

    
    

    (2) The department shall administer and enforce the assessment and collection of the taxes, interest, and penalties imposed by this chapter. . . .

    
    

    * * *

    
    

    (3)(d) The department may revoke any dealer's certificate of registration when the dealer fails to comply with this chapter. Prior to revocation of a dealer's certificate of registration, the department must schedule an informal conference at which the dealer may present evidence regarding the department's intended revocation or enter into a compliance agreement with the department. The department must notify the dealer of its intended action and the time, place, and date of the scheduled informal conference by written notification sent by United States mail to the dealer's last known address of record furnished by the dealer on a form prescribed by the department. The dealer is

    required to attend the informal conference and present evidence refuting the department's intended revocation or enter into a compliance agreement with the department which resolves the dealer's failure to comply with this chapter. The department shall issue an administrative complaint under s. 120.60 if the dealer fails to attend the department's informal conference, fails to enter into a compliance agreement with the department resolving the dealer's noncompliance with this chapter, or fails to comply with the executed compliance agreement.

    
    

18. The evidence establishes that the Petitioner complied with all notice requirements related to the informal conference and that the dealer failed to attend the conference or to execute a compliance agreement.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order revoking the certificate of registration held by the Respondent.

DONE AND ENTERED this 3rd day of March, 2009, in Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2009.

ENDNOTE

1/ All references to Florida Statutes are to Florida Statutes (2008), unless otherwise indicated.

COPIES FURNISHED:

Jennifer Hamilton

L.V. World, Inc. 3517 Domino Drive

Orlando, Florida 32805

Lorenzo Reddick LV World, Inc.

471 Wolcott Place Orlando, Florida 32805

Rachel W. Clark, Esquire Office of the Attorney General The Capitol - Tax Section

Tallahassee, Florida 32399-1050

Marshall Stranburg, General Counsel Department of Revenue

The Carlton Building, Room 204

501 South Calhoun Street Post Office Box 6668

Tallahassee, Florida 32314-6668

Lisa Echeverri, Executive Director Department of Revenue

The Carlton Building, Room 104

501 South Calhoun Street Tallahassee, Florida 32399-0100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 08-005471

Orders for Case No: 08-005471