STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT MAYNARD HARRIS, )

)

Petitioner, )

)

vs. ) CASE NO. 90-1589

)

DEPARTMENT OF REVENUE, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on March 21, 1991, in Ocala, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: No appearance For Respondent: Lee R. Rohe

Assistant Attorney General

Tax Section, The Capitol Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

Whether or not the Department of Revenue has accurately and appropriately assessed Petitioner tax, penalty, and interest for unlawful production of marijuana.

PRELIMINARY STATEMENT

This cause has a long and tortuous history which is fully documented by formal pleadings and orders of record. For purposes of this Recommended Order, however, it is sufficient to relate that by Order entered November 2, 1990, it was ruled that:

The burden of proof and duty to go forward to prove the accuracy and appropriateness of the assessment is upon the agency pursuant to Section 214.06 F.S. The presumption established in Section 212.0505 F.S. shall apply, and the burden shall shift to Petitioner when the agency's prima facie case under Section 214.06 has been presented.

At the date and time that formal hearing was finally convened, following several continuances which in one way or another related to Petitioner's failure to comply with valid discovery requests, Petitioner did not appear. No mail

sent to Petitioner had been returned to the Division of Administrative Hearings and counsel for the Department of Revenue represented that Petitioner had appeared for his deposition March 5, 1991 in partial compliance with the February 22, 1991 Order herein. Therefore, it was determined that Petitioner had received all pleadings, orders, and notices of hearing sent to him at his address of record and that he had had notice of formal hearing. After waiting an additional 10 minutes, the final formal hearing proceeded.

Respondent first raised its previously filed Motion Requesting Admissions Be Deemed Admitted. Rule 1.370 Fla. R. Civ. P. provides that if requests for admission are not timely answered they are deemed admitted, subject only to being set aside upon proper motion and specific findings. The undersigned therefore deemed the Respondent's Amended Request for Admissions which had been served January 17, 1991 to have been admitted by Petitioner.

Also, an Order to Show Cause which had been entered February 22, 1991 had provided time in which Petitioner might show cause why he had not appeared at formal prehearing conference on that date. Petitioner did not timely show good cause for his failure to appear for prehearing conference, and therefore, at the time of formal hearing, the undersigned sua sponte sanctioned the Petitioner by prohibiting him from presenting any oral evidence of witnesses other than himself.

The Department of Revenue presented the oral testimony of Kevin Jackson and had one exhibit admitted in evidence (mismarked Petitioner's 1). After Respondent rested, the undersigned viewed the courtroom and anteroom thereto and determined that the Petitioner still had not appeared. Therefore, the hearing was concluded without any evidence from Petitioner.

Subsequent to hearing, by a Post-Hearing Order entered March 26, 1991, the parties were notified that the transcript of proceedings had been filed on March 25, 1991 and that each party had the opportunity to file proposed findings of fact. Respondent's timely-filed proposed findings of fact have been ruled on in the Appendix to this Recommended Order, pursuant to Section 120.59(2) F.S. Petitioner has submitted no proposed findings of fact.

FINDINGS OF FACT

1. During 1988, Petitioner cultivated a patch of marijuana located in abandoned phosphate pits in Loncala, northwest Marion County.

   
   

2. On or about September 16, 1988 Investigator Glenn Hurst of the Ocala Police Department discovered and seized the marijuana referred to above.

   
   

3. The marijuana seized by Officer Hurst ranged in height from approximately twelve to fourteen feet.

   
   

4. The marijuana seized covered a tract of four acres within the above- described land.

   
   

5. The seized marijuana when weighed by Officer Hurst weighed 2,910 pounds.

   
   

6. The marijuana, when seized, was cut off at the base of each plant with a machete so that the roots were not seized with the plants themselves.

7. The property where the marijuana was seized was under lease to one Sammy Long of Sumter County.

   
   

8. At the time of seizure of the subject marijuana, the property under lease to Sammy Long was owned by one Stanley Cowherd of Planters Boulevard, Boca Raton.

   
   

9. The property under lease to Sammy Long was being utilized by him for the grazing of cattle.

   
   

10. Fred Brown, a longtime friend of Petitioner and of Sammy Long, assisted Petitioner in the cultivation of the subject marijuana.

    
    

11. Kim Nixon, or Kim Mixon, was also involved in the cultivation of the subject marijuana with Petitioner and Fred Brown.

    
    

12. In early August of 1988, Fred Brown moved a small trailer onto the Cowherd/Long property and lived in it during August and during the fall. The trailer was located approximately a mile from the marijuana patch.

    
    

13. There were two electric meters on the property.

    
    

14. One of the electric meters served a well pump used to pump water into a cattle trough. The meter and pole were located within several feet of Brown's trailer. The meter was already active when Brown brought in his trailer.

    
    

15. The other electric meter and pole were located close to the marijuana patch. The meter served a pump for watering the marijuana patch.

    
    

16. The electric meter near the patch had been inactive until March 30, 1988 when Petitioner applied for an electric meter from the Sumter Electric Cooperative (SEC).

    
    

17. Petitioner did not have any cattle grazing on the subject property either before or after he applied for the meter.

    
    

18. Fred Brown did not have any cattle grazing on the subject property either before or after Petitioner applied for the electric meter.

    
    

19. When Officer Hurst arrived at the marijuana patch on September 16, 1988, he found that the meter Petitioner activated served a pump which was connected to an underground sprinkler system. The underground sprinkler system was located within the subject marijuana patch.

    
    

20. On the same date, Officer Hurst found an old water trough near the meter activated by Petitioner, but the trough water was stagnant. Thus, Petitioner had not used the meter to fill the trough near the marijuana patch.

    
    

21. Petitioner's fingerprints were found on the original of the electric meter application.

    
    

22. The fingerprints of Fred Brown were also found on the original of the same application.

    
    

23. On April 26, 1986, Petitioner was arrested for cocaine possession.

24. Fred Brown was arrested on August 15, 1985 for possession of marijuana over 20 grams.

    
    

25. Petitioner had hunted doves during the 1980's on the Cowherd/Long property and was familiar with the property prior to the September 1988 seizure of the subject marijuana.

    
    

26. Fred Brown had also hunted and been familiar with the same property prior to the September 1988 seizure.

    
    

27. Petitioner was responsible for cultivating the subject marijuana seized on September 16, 1988 by Officer Hurst.

    
    

28. Pursuant to Section 212.0505 F.S., the estimated retail value of the subject marijuana is $244,300.00 as stated on the Revised Assessment dated March 27, 1990, which was introduced as the Department of Revenue's sole exhibit.

    
    

29. The Revised Assessment was sent to Petitioner's former attorney, Ed Scott, on March 27, 1990 and received by him on March 30, 1990.

    
    

30. The retail price estimated by the Respondent was based upon 12% of the total marijuana weight of 2,910 pounds.

    
    

31. The factor of 12% represented that portion of the marijuana plants which is considered, by the Department, as usable for consumption after processing of the plants.

    
    

32. The Revised Assessment is mathematically correct.

    
    

33. The Revised Assessment is legally valid.

    
    

34. Per the Revised Assessment, the 20% tax was imposed upon the estimated retail value to arrive at a base tax of $48,860.00.

    
    

35. Per the testimony of Kevin Jackson, the total amount of tax owed by Petitioner to the Department of Revenue amounts to $94,450.42, including penalties and interest, as of March 27, 1990. No surcharge was applicable in this case. Interest on the above amount continues to accrue at a rate of $16.06 per day, making the total as of the date of formal hearing $100,215.96. (TR-12- 13)

    
    

36. The Revised Assessment is prima facie correct in these proceedings.

    
    

37. It is noted that all of Petitioner's "admissions," upon which many of the foregoing findings of fact were based, were couched in terms of "marijuana," which is not named in any applicable statute. (The genus "cannabis" is defined at Section 893.02 F.S. "Cannabis" is the material to be taxed under Section 212.0505(1) F.S., which statute incorporates Section 893.02 F.S. by reference.) No evidence was presented to establish that "marijuana" and "cannabis" are the same substance and the Department of Revenue made no request to officially recognize that they are one and the same. However, because of Petitioner's admissions to the prima facie correctness of the Revised Assessment, its mathematical correctness, and its legal validity against him, no further findings with regard to the nature of marijuana are necessary.

    CONCLUSIONS OF LAW

    
    

38. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.

    
    

39. Pursuant to Rule 22I-6.022 F.A.C., the failure of Petitioner to appear at final hearing shall be grounds for entry of a recommended order of dismissal. However, since the duty to go forward was previously determined to be upon the agency (see Preliminary Statement), Respondent was required to establish its prima facie case.

    
    

40. Section 212.0505 F.S. is the section of the Florida Revenue Code which provides for the taxation of illegal drugs. The evidence clearly demonstrated that Petitioner had exercised possession and control over the marijuana patch. The amount found, along with its fair market value, was not contested at this hearing.

    
    

41. Petitioner failed to appear and thus did not rebut the prima facie correctness of the Revised Assessment. See, Section 212.0505(5) F.S.

    
    

42. The Petitioner, therefore, owes the Department the taxes, penalties, and interest outlined above.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order upholding the Revised Assessment, assessing the Petitioner $100,215.96 as of the date of formal hearing plus statutory interest continuing to accrue from date of formal hearing.

RECOMMENDED this 14th day of May, 1991, at Tallahassee, Florida.

ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-1589

The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF):

Petitioner's PFOF:

Petitioner submitted no PFOF. Respondent's PFOF:

1-37 Accepted as modified to more closely reflect the greater weight of the evidence as a whole. Those matters not supported by the record have been rejected as contrary to the record.

COPIES FURNISHED:

Lee R. Rohe

Assistant Attorney General Tax Section, Capitol Building

Tallahassee, Florida 32399-1050

Robert Maynard Harris 13980 S.E. 80th Avenue

Summerfield, Florida 32691

J. Thomas Herndon Executive Director Department of Revenue

104 Carlton Building Tallahassee, FL 32399-0100

Vicki Weber, General Counsel Department of Revenue

204 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. Some agencies allow a larger period within which to submit written exceptions. You should consult with 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.

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AGENCY FINAL ORDER

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STATE OF FLORIDA DEPARTMENT OF REVENUE

ROBERT MAYNARD HARRIS,

Petitioner,

vs. DOAH Case No. 90-1589

DEPARTMENT OF REVENUE,

Respondent.

/

FINAL ORDER

This matter came before the Department of Revenue for the purpose of considering a Recommended Order. The Hearing Officer assigned by the Division of Administrative Hearings submitted a Recommended Order to the Department of Revenue. A copy of that Recommended Order is attached hereto and is incorporated herein as modified below.

The Hearing Officer recommends that the assessment be sustained. The Findings of Fact contained in the Recommended Order are based upon Respondent's Request for Admissions, deemed admitted by the Hearing Officer. It should be noted that after legally sufficient notice, Petitioner failed to attend the formal hearing.

Respondent timely filed certain exceptions to legal argumentation found in the Hearing Officer's Preliminary Statement and Conclusions of Law, of her Recommended Order. These exceptions are adopted as indicated below, in accordance with Rules 12-3.004 & 12-3.005, F.A.C. For the reasons expressed below, the Department adopts the Hearing Officer's recommendation that the assessment be sustained.

PRELIMINARY STATEMENT

The Department accepts and incorporates by reference as if fully set forth herein, the Hearing Officer's Preliminary Statement of the Recommended Order as modified below.

Respondent takes exception to The Hearing Officer's specific legal argument that section 214.06, F.S.S.., places the burden of proof upon the agency.

Chapter 214, F.S., as provided in section 214.01, F.S., applies only to such nonproperty taxes as are expressly made subject to its provisions. Chapter 212, F.S., has never been made subject to the provisions of Chapter 214, F.S. Therefore, Respondent's exceptions in this regard are adopted.

FINDINGS OF FACT

1. through 37. The Department hereby adopts and incorporates by reference the Findings of Fact set forth in paragraphs 1 through 37 of the Recommended Order.

CONCLUSIONS OF LAW

1. The Department hereby adopts and incorporates by reference Conclusion of Law numbered 1 as set forth in the Recommended Order.

   
   

2. The Department hereby adopts and incorporates by reference Conclusion of Law numbered 2 set forth in the Recommended Order, as modified below. Respondent takes exception to Hearing Officer's reference to the agency's "duty to go forward. "Section 212.0505(5), F.S., provides that the assessment itself is prima facie correct. Furthermore, section 120.575(2), F.S., provides:

"In any administrative proceeding brought pursuant to s. 120.57, the applicable department's burden of proof, . . . shall be limited to a showing that an assessment has been made against the taxpayer and the factual and legal grounds upon which the applicable department made the assessment."

Therefore, the agency must introduce the assessment as prima facie correct, and once the assessment has been introduced, the

Petitioner has the burden of proof to rebut the presumption that the assessment is prima facie correct. Respondent's exception as above indicated, are adopted.

CONCLUSION

The Department, based upon the Preliminary Statement, Findings of Fact, and Conclusions of Law, set forth by the Hearing Officer in her Recommended Order, as modified by Respondent's exceptions above, sustains the assessment against Petitioner in full. Based upon the foregoing, it is ORDERED:

That the subject assessment against Petitioner is sustained in full.

Any Party to this Order has the right to seek judicial review of the Order as provided in Section 120.68, Florida Statutes, by the filing of a Notice of Appeal as provided in Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the Department in the Office of General Counsel, Post Office Box 6668, Tallahassee, Florida 32314-6668 and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the Clerk of the Department.

DONE AND ENTERED in Tallahassee, Leon County, Florida this 13 day of

August , 1991.

STATE OF FLORIDA DEPARTMENT OF REVENUE

J. Thomas Herndon Executive Director

CERTIFICATE OF FILING

I HEREBY CERTIFY that the foregoing Final Order has been filed in the official records of the Department of Revenue, this 13 day of August, 1991.

JUDY LANGSTON, AGENCY CLERK

Copies: Lee R. Rohe, Esquire

Assistant Attorney General Department of Legal Affairs

Tax Section, The Capitol Building Tallahassee, FL. 32399-1050

Ella Jane P. Davis, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL. 32399-1550

Robert Maynard Harris 13980 S.E. 80th Avenue Summerfield, Florida 32691

Victoria L. Weber, General Counsel

Eric A. de Moya, Assistant General Counsel Department of Revenue

Room 204, Carlton Building Tallahassee, FL 32301

Docket for Case No: 90-001589

Orders for Case No: 90-001589