STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

INTERNATIONAL CONFERENCE OF ) POLICE CHAPLAINS, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1935

)

DEPARTMENT OF REVENUE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice on October 15, 1996, a formal administrative hearing was held in the above-captioned case in Panama City, Florida, before Diane Cleavinger, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: David W. DeRevere, Executive Director

International Conference of Police Chaplains

Post Office Box 5590 Destin, Florida 32540-5590

For Respondent: William B. Nickell, Esquire

Department of Revenue Post Office Box 6668

Tallahassee, Florida 32314-6668 STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner is entitled to a consumer's certificate of exemption from sales tax as a "religious institution" as defined in Subsection 212.08(7)(o)2.a, Florida Statutes (1995).

PRELIMINARY STATEMENT

Around January 4, 1996, Petitioner filed an application for exemption from sales tax as a religious institution. On March 26, 1996, Respondent denied the Petitioner's application. The Petitioner disagreed with the Respondent's denial and requested a formal administrative hearing. The case was forwarded to the Division of Administrative Hearings for the purpose of conducting an administrative hearing.

At the hearing, Petitioner presented the testimony of one (1) witness and submitted two (2) exhibits into evidence. Respondent offered the testimony of one witness and submitted one (1) exhibit into evidence. Additionally, the Petitioner and Respondent stipulated that 1) The only applicable exemption was

as an administrative office of a religious institution as specified in Section 212.08(7)(o)2.a, Florida Statutes and that 2) The Petitioner is a non-profit organization.

After the hearing, Respondent, Department of Revenue (DOR) filed a proposed recommended order on October 21, 1996. Petitioner did not file a proposed recommended order.

FINDINGS OF FACT

1. Petitioner is a non-profit corporation located in the State of Florida. Petitioner is dedicated to the training and education of persons who minister to law enforcement officers as police chaplains.

   
   

2. The association is interfaith and interdenominational. It is not organizationally affiliated with any church and is not itself a church. It does not conduct worship services, nor require its members to conduct worship services. Moreover, Petitioner's member police chaplains are not necessarily required to be members of a religious organization.

   
   

3. Petitioner does not control who may be selected by a law enforcement agency as a chaplain. In fact, persons acting as police chaplains can perform their duties without being a member of or consulting with Petitioner.

   
   

4. Petitioner does not have a physical building or other structure which is used regularly for worship services or is used by any of its members to conduct regular worship services.

   
   

5. Additionally, Petitioner did not offer or submit any competent evidence to show that it is within a larger church hierarchy or that there is some organizational nexus with various police departments or their chaplains.

   
   

6. The association does have a voluntary ethical code for its members and does provide newsletters and documents about ethics to its members. The association also provides information to law enforcement agencies on operating a police chaplaincy and information related to selecting a police chaplain. However, no evidence was presented that Petitioner participates with or controls its members as they perform their daily duties as a chaplain. Likewise, Petitioner did not offer or submit any competent evidence to show that it "customarily" exercises any control over police chaplains or that it regularly participates in any of the "customary" activities of police chaplains.

   
   

7. In short, Petitioner is a voluntary social organization whose various members have a common interest in the quality of ministering to law enforcement agencies. It is not an administrative office of a discreet religious hierarchy. Lacking such an affiliation, Petitioner is not entitled to a certificate of exemption.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Petitioner must qualify for a specific exemption from the sales and use tax in order to receive a certificate of exemption to be exempt. Section 212.08(7), Florida Statutes.

10. Section 212.08(7)(o)2, Florida Statutes (1995) states in pertinent part, as follows:

    
    

    The provisions of this section . . . shall be strictly defined, limited, and applied in each category as follows:

    1. 'Religious institutions' means churches, synagogues, and established physical places for worship at which non-

       profit religious services and activities are regularly conducted and carried on. The term 'religious institutions' includes nonprofit corporations the sole purpose of which is to provide free transportation services to church members, their families, and other church attendees. The term 'religious institutions' also includes state, district, or other governing or administrative offices the function of which is to assist or regulate the customary activities of religious organizations or members. The term 'religious institutions' also includes any nonprofit corporation which is qualified as nonprofit pursuant to s. 501(c)(3), United States Internal Revenue Code of 1986, as amended, which owns and operates a Florida television station, at least 90 percent of the programming of which station consists of programs of a religious nature, and the financial support for which, exclusive of receipts for broadcasting from other non- profit organizations, is predominantly from contributions from the general public. The term 'religious institutions' also includes any nonprofit corporation which is qualified as nonprofit pursuant to s. 501(c)(3), United States Internal Revenue Code of 1986, as amended, which provides regular religious services to Florida state prisoners and which from its own established physical place of

       worship, operates a ministry providing worship and services of a charitable nature to the community on a weekly basis.

       
       

11. Subsection 212.08(7)(o)2.a., Florida Statutes applies only when a "governing or administrative office" "functions" to assist or regulate the customary activities of discreet religious organizations or their religious members, and is part of a larger religious hierarchy. Section 212.08(7)(o)2, Florida Statutes. Green v. State, 604 So. 2d 471 (Fla. 1992); Florida Police Benevolent Association, Inc. v. Dept. of Agriculture, 574 So. 2d 120 (Fla. 1991).

    
    

12. In this case Petitioner has not met the necessary burden to demonstrate it is qualified for an exemption as an administrative office of a discreet religious hierarchy pursuant to Sections 212.08(7)(o)2.a., Florida Statutes.

RECOMMENDATION

Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED:

That the Department of Revenue enter a Final Order denying Petitioner's application for a consumer's certificate of exemption as a religious institution.

DONE and ENTERED this 14th day of November, 1996, in Tallahassee, Leon County, Florida.

DIANNE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 1996.

COPIES FURNISHED:

William B. Nickell, Esquire Department of Revenue

Post Office Box 6668 Tallahassee, FL 32314-6668

David W. Derevere, Executive Director International Conference of

Police Chaplains Post Office Box 5590 Destin, FL 32540-5590

Linda Lettera, Esquire Department of Revenue

204 Carlton Building Tallahassee, FL 32399-0100

Larry Fuchs, Executive Director Department of Revenue

104 Carlton Building Tallahassee, FL 32399-0100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-001935

Orders for Case No: 96-001935