STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDUCATIONAL INCENTIVE )

PROGRAM, INCORPORATED, )

)

Petitioner, )

)

vs. ) Case No. 98-4850

)

DEPARTMENT OF REVENUE, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law Judge for the Division of Administrative Hearings, held a formal telephone conference hearing in this matter on June 25, 1999, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Elijah Jackson, Jr.

Qualified Representative Educational Incentive Program,

Incorporated

Post Office Box 29895 Lakeland, Florida 33804-2895

For Respondent: William B. Nickell, Esquire.

Department of Revenue

501 South Calhoun Street, Suite 204

Tallahassee, Florida 32301 STATEMENT OF THE ISSUE

Should Petitioner's Application for Consumer's Certificate Of Exemption be granted?

PRELIMINARY STATEMENT

By Notice of Intent to Deny dated October 9, 1998, the Department of Revenue (Department) notified Petitioner that Petitioner's application for Consumer's Certificate of Exemption had been denied. The denial was based on the following:

1. Your organization is not a state tax- supported, parochial, church or nonprofit private school, college or university which conducts regular classes and courses of study required for accreditation by, or membership in the Southern Association of Colleges and Schools, the Department of Education, the Florida Council of Independent Schools, or the Florida Association of Christian Colleges and Schools, Inc.

   
   

2. The purpose of your organization is not to raise funds for schools teaching grades kindergarten through high school, colleges, or universities.

   
   

3. Your organization is not a state, district, or other governing or administrative office the function of which is to assist or regulate the customary activities of educational organizations and members.

   
   

4. Your organization fails to meet the qualifications for exemption from sales and use taxation, as set forth in Section 212.08, Florida Statutes.

By an undated letter, Petitioner responded to the Notice of Intent to Deny and requested a formal hearing.

By letter dated October 26, 1998, the Department referred this matter to the Division of Administrative Hearings (Division) for the assignment of an Administrative Law Judge and for the

conduct of a hearing. Subsequently, the Department filed an Answer to Petitioner's response.

On June 25, 1999, a telephone conference hearing was held so that Elijah Jackson, Jr. could participate from his home and accommodate his disability in accordance with the Americans with Disabilities Act.

At the hearing, Petitioner presented the testimony of Elijah Jackson, Jr. Petitioner's Exhibits 1 through 6 were admitted in evidence. The Department presented no oral or documentary evidence.

A one-volume Transcript of this proceeding was filed with the Division on July 1, 1999. The Department filed its Proposed Recommended Order. Petitioner elected not to file a proposed recommended order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. Petitioner is an organization incorporated under the laws of the State of Florida. Petitioner applied for a Consumer's Certificate of Exemption with the Department of Revenue pursuant to Section 212.08(7), Florida statutes.

2. The Department of Revenue is the agency charged with the responsibility of granting or denying a Consumer's Certificate of Exemption pursuant to Chapter 212.08(7), Florida Statutes.

3. Petitioner has not been qualified as non-profit pursuant to Section 501(c)(3), Internal Revenue Code of 1986, as amended.

4. Petitioner failed to establish facts to show that it is a "religious institution" as that term is defined in Section 212.08(7)(o)2.a., Florida Statutes.

5. Petitioner failed to establish facts to show that it is a "charitable institution" as that term is defined in Section 212.08(7)(o)2.b., Florida Statutes.

6. Petitioner failed to establish facts to show that it is a "educational institution" as that term is defined in Section 212.08(7)(o)2.d., Florida Statutes.

7. All of the exhibits and testimony presented by Petitioner relate to JBS Incorporated, "Jackson Merit National and International Scholarship Fund Corporation, et. al. (A private Foundation and Corporation)," Elijah Jackson individually, or one of the other referenced entities none of which is the applicant or the Petitioner in this case. To the extent that the exhibits relate to Petitioner they indicate that Petitioner is "a/k/a Educational Festival of Polk County."

   CONCLUSIONS OF LAW

   
   

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

9. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal.

Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 2d DCA 1981). To meet this burden, Petitioner must establish facts upon which Petitioner's allegations for entitlement to a Consumer's Certificate of Exemption is based by a preponderance of evidence. See Department of Banking and Finance, Division of Securities and Investor Protection vs.

Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996) and Section 120.57(1)(j), Florida Statutes (Supp. 1998). Petitioner has failed to meet its burden to show entitlement to a Consumer's Certificate of Exemption.

RECOMMENDATION

Based on the foregoing Findings of Fact and 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.

DONE AND ENTERED this 17th day of September, 1999, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6947 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 1999.

COPIES FURNISHED:

Linda Lettera, General Counsel Department of Revenue

204 Carlton Building Tallahassee, Florida 32399-0100

Larry Fuchs, Executive Director Department of Revenue

104 Carlton Building Tallahassee, Florida 32399-0100

Elijah Jackson, Jr. Qualified Representative

Educational Incentive Program, Incorporated

Post Office Box 29895 Lakeland, Florida 33804-2895

William B. Nickell, Esquire. Department of Revenue

501 South Calhoun Street, Suite 204

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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: 98-004850

Orders for Case No: 98-004850