STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN T. CLARK, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2311

) STATE OF FLORIDA, OFFICE ) OF THE COMPTROLLER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on January 14, 1980, in Tallahassee, Florida. Thereafter, pursuant to leave, the parties were allowed through January 28, 1980, to submit memoranda supportive of their respective positions which were received and considered by me in preparation of this Recommended Order. 1/

APPEARANCES

John T. Clark, Post Office Box 976, Quincy, Florida 32351, appearing in proper person. Michael Basile, Esquire Assistant General Counsel, Office of the Comptroller, The Capitol, Tallahassee, Florida 32301.

ISSUE

The issue posed for decision herein is whether or not the Respondent properly denied Petitioner's refund request for that portion of his Foresters licensing fee for the period July 1, 1979, through December 31, 1981.

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, and the entire record compiled herein, the following relevant facts are found.

   
   

2. John T. Clark, Petitioner, is a licensed Florida Forester and, as such, received during December of 1978 a notice mailed by the Board of Registration for Foresters a license fee request for the period of January 1, 1979, through December 31, 1981. Petitioner timely submitted his license fee for the registration period in question.

   
   

3. The Forestry Practice Act expired on June 30, 1979, based upon a veto by the Governor. (Chapter 76-168 as amended by Chapter 77-457, Chapter 6, Florida Statutes, the "Sunset Act".) Petitioner, by letter dated July 2, 1979, requested a refund of the license fee paid for the eighteen-month period of July, 1979, through December, 1981.

4. On October 22, 1979, Gerald A. Lewis, Comptroller, advised Petitioner of the Respondent's notice of intent to deny his refund. That notice alleged in pertinent part that "pursuant to an Attorney General Opinion dated January 27, 197P) (AGO No. 078-14), Section 215.26, Florida Statutes, as construed by Florida Courts, provides that refunds may only be made from the funds benefited and if such fund does not have sufficient monies. . . to make the requested refunds, then the refunds cannot be made absent a specific legislative appropriation or claims bill." Petitioner was then advised that the fund benefited by the license payment did not have sufficient monies to pay the requested refund and, therefore, the request would be denied.

   
   

5. Florida Statutes 215.26(1)(a) provides in pertinent part that the Comptroller of the State may refund to the person who paid same . . . any monies paid to the State Treasury which constitute:

   
   

   1. An overpayment of any tax, license or account due.

      
      

6. Petitioner introduced into evidence the financial statement for the Board of Registration for Foresters for the quarter ending October 31, 1979, which indicates that as of October 31, 1979, the Board of Foresters had total net resources available of $17,767.91. (Petitioner's Composite Exhibit 1.)

   
   

7. At the time Petitioner remitted his payment, the amount remitted was correct under the laws and applicable rules of the Board of Registration for Foresters then in effect. Rule 211-2.06, Rules of the Board of Registration for Foresters, Florida Administrative Code. However, the parties also further agree that the payment tendered was a regulatory fee (as contrasted to a tax) and was used to defray the cost of regulation, and not as a general revenue producing measure. As such, the monies were deposited in a regulatory trust fund which of course reflects the fact that monies are available in said fund and which, in this instance, can be used as a refund for any overpayments. It is further undisputed that the period of regulation was for a two-year period while the regulation only lasted six months. In view of these factors, Section 215.26(1))a), Florida Statutes, authorizes a refund of an overpayment such as was paid by the Petitioner in this case. I shall so recommend.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57(1), Florida Statutes.

   
   

9. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

10. The authority of the Respondent is derived from Chapter 215, Florida Statutes.

    
    

11. Competent and substantial evidence was offered to establish that the Petitioner, as a matter of law, tendered an overpayment as that term is set forth in and defined in Chapter 215.26(1)(a), Florida Statutes.

RECOMMENDATION

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

RECOMMENDED:

That the Petitioner's refund request of July 2, 1979, be GRANTED. RECOMMENDED this 3rd day of March, 1980, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

ENDNOTE

1/ However, to the extent that the parties' recommendations and proposed findings are not adopted herein, such recommendations are rejected.

COPIES FURNISHED:

John T. Clark

Post Office Box 976 Quincy, Florida 32351

Michael Basile, Esq. Assistant General Counsel Office of the Comptroller The Capitol

Tallahassee, Florida 32301

Docket for Case No: 79-002311

Orders for Case No: 79-002311