STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF MELBOURNE, MELBOURNE ) REGIONAL AIRPORT AUTHORITY, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2387

)

OFFICE OF THE COMPTROLLER, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for the rendition of a Recommended Order on the stipulation of the parties that no material facts were in dispute. The following appearances were entered:

For Petitioner: William C. Potter,, Esquire

Post Office Box 9771, EG Melbourne, Florida 32935

For Respondent: Michael Basile, Esquire

Deputy General Counsel Office of the Comptroller The Capitol

Tallahassee, Florida 32301

These proceedings began when the Petitioner, City of Melbourne, Regional Airport Authority (Authority) requested a refund of fees it had paid into the State Mobile Home Tenant-Landlord Trust Fund (Mobile Home Trust Fund). On October 26, 1979, the Comptroller, Gerald A. Lewis issued a Notice of Intent to deny the request. The Authority responded on November 13, 1979, by requesting an administrative hearing. Subsequently on November 30, 1979, the matter was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final hearing.

A hearing was noticed but by a Stipulation of Fact entered into on January 31, 1980 by the parties, they agreed to have the case considered on the stipulation. At the request of the Hearing Officer, a supplement to the stipulation was filed on May 9, 1980. The parties have submitted briefs on the legal issued in contention.

FINDINGS OF FACT

(As established by the Stipulation of Facts)

1. Chapter 77-49, Laws of Florida (Sections 83.770 to 83.794, Florida Statutes.) Created the Mobile Home Tenant-Landlord Commission. Section 6 thereof required the registration of all mobile home parks containing 100 or more dwelling units. A registration fee of $1.00 for each dwelling unit

   contained in the mobile home park , was required to accompany the application for registration.

   
   

2. Pursuant to the Act Respondent, Authority, the owner and operator of a 742 unit mobile home park, filed its application for registration together with

   $742.00 on March 3, 1978.

   
   

3. On April 26, 1979, subsequent to the foregoing payment by Respondent, Chapter 77-49, Laws of Florida was held unconstitutional in the case of Department of Business Regulation v. National Manufactured Housing Federation, 370 So.2d 1132 (Fla. 1979).

   
   

4. Thereafter, on July 16, 1979, Respondent requested a refund of $742.00 from the Office of the Comptroller. The Comptroller denied the request on October 26, 1979.

   
   

5. On November 13, 1979, Respondent requested an administrative hearing on the Notice of Intent to Deny Refund.

   
   

6. The State Mobile Home Tenant-Landlord Trust Fund lacked sufficient monies from which to make a refund at the time of the request by Respondent.

   The funds received by the State Mobile Home Tenant-Landlord Trust Fund had been disbursed for the payment of salaries, travel expenses of its employees, postage expenses, office supplies, etc. and for the payment of $9.664.96 to the General Revenue Fund of the State of Florida (GRF). This payment was made on June 25, 1979 to repay sums appropriated from the GRF to the Mobile Home Tenant-Landlord Commission for start up costs prior to the collection of registration fees.

   
   

7. On October 18, 1977, the State Administration Commission granted a loan of $19,627 from the GRF to the Department of Business Regulation for the purpose of providing start up funds for the administration of the State Mobile Home Tenant-Landlord Act, Chapter 77-49, Laws of Florida.

   
   

8. In making the loan the Administration Commission provided that it be repaid on or before June 30, 1978. No evidence has been presented on why the loan was not repaid at that time.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1) and Section 120.65, Florida Statutes (1979)

   
   

10. In its 1977 session the Florida Legislature passed Chapter 77-49, Laws of Florida (1977) which provided that the owner of every mobile home park which contains 100 or more units must register with the State Mobile Home Tenant- Landlord Commission. At the time of registration the owner must pay a fee of

    $1.00 per unit in his park. This fee would be deposited in the State Mobile Home Trust Fund. That law became effective on July 1, 1977.

    
    

11. In the case of Department of Business Regulation v. National Manufactured Housing Federation, 370 So.2d 1132 (Fla. 1979) the Florida Supreme Court declared Chapter 77-49, Laws of Florida (1979) unconstitutional. The Court's decision did not state that it would operate prospectively only.

12. When a tax statute is declared unconstitutional, persons who paid a tax under it are entitled to a refund. State ex rel. Hardaway Contracting Company v. Lee 21 So.2d 211 (Fla. 1945).

    
    

13. The right to repayment when a tax statute is declared void accrues retroactively to the date the tax was paid to the State. State ex rel. Victor Chemical Works v. Gay, 74 So.2d 560 (Fla. 1954).

    
    

14. Petitioner paid its $742.00 fee into the Mobile Home Trust Fund on March 3, 1978. As the result of Chapter 77-49 being declared unconstitutional, the Authority had a right to the return of its money retroactive to March 3, 1978.

    
    

15. Petitioner's application for a refund, filed on July 16, 1979, was timely under the provisions of Section 215.26(2), Florida Statutes (1979).

    
    

16. Refunds from the State Treasury are governed by Section 215.26, Florida Statutes (1979) which provides:

    
    

    1. The Comptroller of the state may refund to the person who paid same, or his heirs, per- sonal representatives or assigns, any moneys paid into the State Treasury which constitute:

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

          (b)) A payment where no tax, license or account is due; and

          (c) Any payment made into the State Treasury in error; and if any such payment has been credited to an appropriation, such appropri-

          ation shall at the time of making any such refund, be charged therewith. . .

          
          

17. When a tax is made pursuant to a statute later declared unconstitutional, that payment is one made "where no tax, license, or account is due." State ex rel. Hardaway Contracting Company v. Lee, supra.

    
    

18. The license fee paid by Petitioner was deposited in a trust fund authorized by Section 215.132, Florida Statutes (1979) which states:

    
    

    1. All moneys received by the state shall be deposited in the State Treasury unless specifically provided otherwise by law and shall be deposited in and accounted for by the State Treasurer and the Department of Banking and Finance within the following funds, which funds are hereby created and established:

       1. General Revenue Fund,

       2. Trust funds,

       3. Working Capital Fund, and

       4. Federal Revenue Sharing Fund.

          (2)(b) 1. The trust funds shall consist of monies received by the state which under law or under trust agreement are segregated for a purpose authorized by law..

          To begin operation the Commission was initially funded by a loan from the General Revenue Fund. Such loans are authorized by Section 215.18, Florida Statutes (1979) which provides:

          
          

          Whenever there exists in any fund provided for by s. 215.32 a deficiency which would

          render such fund insufficient to meet its just requirements, and there shall exist in the other funds in the State Treasury moneys which are for the time being or otherwise in excess of the amounts necessary to meet the just requirements of such last-mentioned funds, the State Administration Commission, with the concurrence of the Governor, may order a temporary transfer of moneys from one fund to another in order to meet temporary deficiencies in a particular fund without resorting to the necessity of borrowing money and paying interest thereon. The fund from which any money is temporarily transferred shall be re- paid the amount transferred from it not later than the end of the fiscal year in which such transfer is made, the date of repayment to be specified in the order of the State Administration Commission.

          
          

          In this case the State Administration Commission provided that the loan be paid by on or before June 30, 1978. In fact that repayment, for reasons not reflected in the record, was not made until June 25, 1979.

          
          

19. Section 215.26(1)(c) requires that if a refund claim is for money credited to an appropriation then the refund must come from that appropriation. This provision creates the instant issue: Can the Comptroller make a refund when the appropriation, that is a trust fund, is void ab initio and all of its remaining funds were used to satisfy part of the loan it received from the General Revenue Fund?

    
    

20. In this case both the General Revenue Fund and Petitioner had a valid claim to funds in the Mobile Home Trust Fund. The claim of the General Revenue Fund matured on June 3O, 1978, the date set by the Administration Commission for repayment of the loan. The claim of the Petitioner matured on March 3, 1978, the date the Authority paid its registration fee. Due to no bad faith to the part of any person, the General Revenue Fund had its claim, or part of its claim satisfied first. With no funds remaining in the "appropriation" the Comptroller no longer has any legal source to satisfy Petitioner's claim. State ex rel. Victor Chemical Works v. Gay, supra; Section 215.26(1), Florida Statutes (1979). If he paid the instant claim out of the General Revenue Fund that payment would violate the purpose for which the trust funds were established--to segregate their operations from that of the General Revenue Fund. Section 215.32, Florida Statutes (1979).

RECOMMENDATION

In light of the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED:

That the application of the City of Melbourne, Melbourne Regional Airport Authority for a refund from the State Treasury in the amount of $742.00 be denied.

DONE and RECOMMENDED this 25th day of November, 1980, in Tallahassee, Florida.

MICHAEL PEARCE DODSON

Hearing Officer

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

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 1980.

COPIES FURNISHED:

William C. Potter, Esquire NABORS POTTER McCLELLAND

GRIFFITH & JONES, P.A.

1380 Sarno Road

Post Office Box 977/EG Melbourne, Florida 32935

Michael Basile, Esquire Deputy General Counsel Office of the Comptroller The Capitol

Tallahassee, Florida 32301

Docket for Case No: 79-002387

Orders for Case No: 79-002387