STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES EUGENE TAYLOR, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0698

)

DEPARTMENT OF REVENUE, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter comes on for decision on written submissions in accordance with the parties' agreement that requests for admissions and petitioner's deposition testimony establish all factual matters.

APPEARANCES

For Petitioner: William J. Sheppard, Esquire

215 Washington Street Jacksonville, Florida 32202

For Respondent: Lee R. Rohe, Esquire

The Capitol, Tax Section Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUES

Whether petitioner owes respondent tax, surcharge, penalties and interest aggregating $55,335.85 on account of the unlawful sale, use, consumption, distribution, manufacture, derivation, production, transportation or storage of cannabis?

PRELIMINARY STATEMENT

Respondent issued a notice of assessment and jeopardy findings against petitioner on January 2, 1990, alleging petitioner owed tax, surcharge, penalties and interest through November 30, 1989, aggregating $55,335.85. By petition respondent received on January 30, 1990, petitioner disputed the assessment, denying that he "ever lawfully sold . . . cannabis." When the parties stipulated to the accuracy of petitioner's testimony on deposition, and that the facts as to which requests for admission had been served should be deemed admitted, they agreed they had resolved all disputes of material fact.

But the parties also stipulated to proceed under Section 120.57(1), Florida Statutes (1989).

FINDINGS OF FACT

1. On October 28, 1989, petitioner was arrested by Florida Department of Law Enforcement agents in a Ramada Inn parking lot on Hartley Road in Jacksonville as he prepared to drive away in a white Chevrolet. The car trunk contained 45 to 72 pounds of cannabis.

   
   

2. Not knowing John Abbott was working for the Florida Department of Law Enforcement, petitioner had just given Mr. Abbott $47,500 (which belonged to one Barklow) in exchange for the keys to the Chevrolet, with the understanding he would drive elsewhere, unload the marijuana, and return the car.

   
   

3. The parties stipulated that the facts respondent asked petitioner to admit were true. They include the following:

   
   

4. On January 2, 1990 the respondent served petitioner with a Notice of Assessment and Jeopardy Findings taxing the subject marijuana.

   
   

5. Per section 212.0505, Florida Statutes, the estimated retail price of the cannabis contained within the above-mentioned vehicle was $47,500.

   
   

6. The assessment in the amount of $55,335.85, with interest continuing to accrue, is mathematically correct.

   
   

   CONCLUSIONS OF LAW

   
   

7. Since the Department of Revenue referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1989), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1989). Although the parties stipulated to the absence of any dispute of material fact, they agreed to proceed under Section 120.57(1), Florida Statutes (1989).

   
   

8. Respondent contends that petitioner owes an excise tax on account either of the sale or of the storage of the cannabis in the car trunk, and predicates its notice of assessment on Section 212.0505, Florida Statutes (1989), which provides:

(1)(a) Every person is exercising a taxable privilege who engages in this state in the unlawful sale, use, consumption, distribu- tion, manufacture, derivation, production, transportation, or storage of any medicinal drug as defined in chapter 465, cannabis as defined in s. 893.02 or controlled substance enumerated in s. 893.03.

Section 212.02(16)(a), Florida Statutes (1989) defines "sale," as follows: Any transfer of title or possession, or both,

exchange, barter, license, lease, or rental, conditional or otherwise, in any manner or by any means whatsoever, of tangible personal property for a consideration.

The agreed facts constitute a sale within the meaning of this comprehensive definition, whether or not petitioner could be proven guilty of possessing cannabis in violation of the criminal law on these facts. See generally Roberts

v. State, 505 So. 547 (Fla. 3rd DCA 1987).

RECOMMENDATION

It is, accordingly recommended that respondent's notice of assessment and jeopardy findings be made final.

RECOMMENDED this 6th day of February, 1991, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1991.

COPIES FURNISHED:

Lee R. Rohe, Esquire Department of Legal Affairs The Capitol - Tax Section Tallahassee, FL 32399-1050

William J. Sheppard, Esquire Sheppard & White

215 Washington Street Jacksonville, FL 32202

J. Thomas Herndon, Executive Director Department of Revenue

104 Carlton Building Tallahassee, FL 32399-0100

William D. Moore, General Counsel Department of Revenue

203 Carlton Building Tallahassee, FL 32399-0100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY 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.

Docket for Case No: 90-000698

Orders for Case No: 90-000698