STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PLOTKIN MANAGEMENT CORPORATION, ) d/b/a RENDALE HOTEL, )

)

Petitioner, )

)

vs. ) CASE NO. 79-038RX

)

DEPARTMENT OF REVENUE, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, an administrative hearing was held before Michael R. N. McDonnell, Hearing Officer for the Division of Administrative Hearings, at 9:00 a.m., on April 27, 1979, in Room 360, Graham State Office Building, 1351 N.W.

12th Avenue, Miami, Florida. The transcript of proceedings was received by the Division of Administrative Hearings on September 26, 1979.

APPEARANCES

Petitioner was represented by Elliott Harris, Esquire, Suite 202, Roberts Building, 28 West Flagler Street, Miami, Florida 33130. Respondent was represented by Linda Procta, Esquire, Assistant Attorney General, Department of Legal Affairs, The Capitol, Room LL04, Tallahassee, Florida 32301.

1. This case has arisen as a result of an assessment made by the Respondent, Department of Revenue (hereafter DOR), against the Petitioner, Plotkin Management Corporation d/b/a Rendale Hotel (hereafter Plotkin), for sales tax, penalty and interests. The assessment is based on Section 212.03, Florida Statutes, which requires persons engaged in the business of renting transient or seasonal living accommodations to collect a 4% tax on the total rent charged and then remit this tax to DOR. In a separate action (DOAH Case No. 79-017), Plotkin has alleged that no tax is due on the rentals it receives since the hotel is a facility which is defined in Section 212.03(7), Florida Statutes, as one where persons reside in any building intended primarily for lease or rent as a permanent or principal place of residence.

   
   

2. In this action, Plotkin challenges Rule 12A-1.61, Florida Administrative Code, under the provisions of Section 120.56, Florida Statutes. Plotkin frames the issue as:

   
   

   Whether or not Rule 12A-1.61 is so ambiguous that it should be declared invalid.

   
   

3. Section 120.56(1), Florida Statutes, provides:

   
   

   Any person substantially affected by a rule may seek an administrative determination of

   the invalidity of the rule on the ground that the rule is an invalid exercise of

   delegated legislative authority.

   
   

4. Plotkin has amply demonstrated that it is substantially affected by the rule it challenges. However, as can be seen from the cited statute, the only ground upon which this Division may make an administrative determination of the invalidity of a rule, is when it is alleged that the rule is an invalid exercise of delegated legislative authority. Plotkin has made no such allegation in this case.

   
   

5. While the ambiguity of a rule is a proper subject to be considered by the Hearing Officer in a Section 120.57, Florida Statutes, hearing which deals with agency decisions affecting substantial interests, it is concluded that the Legislature has not delegated such authority to the Division of Administrative Hearings in the administrative determination of the validity of a rule pursuant to Section 120.56, Florida Statutes. Accordingly, it is,

ORDERED that Plotkin's challenge to Rule 12A-1.61, Florida Administrative Code, be and the same is hereby denied.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 7th day of November, 1979.

MICHAEL R. N. MCCONNELL

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Elliott Harris, Esquire Suite 202, Roberts Building

28 West Flagler Street Miami, Florida 33130

Linda Procta, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Room LL04 Tallahassee, Florida 32301

Carroll Webb, Executive Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32301

Ms. Liz Cloud Department of State Room 1802, The Capitol

Tallahassee, Florida 32301

Docket for Case No: 79-000038RX

Orders for Case No: 79-000038RX