The Issue The issue in this matter is whether section 330.30(3)(f), Florida Statutes, exempts Petitioner from obtaining the approval of the Department of Transportation prior to using a private heliport site adjacent to his property.
Findings Of Fact The Department is authorized to administer and enforce the rules and requirements for airport sites, including initial airport site approval, registration of private airports, and licensing of public use airports. See § 330.29, Fla. Stat. Petitioner owns a home next to Honeymoon Lake in Brevard County, Florida. Petitioner, an aviation enthusiast, also owns several helicopters. Petitioner currently parks his helicopters at a nearby airport. Petitioner desires to takeoff and land his helicopters at his home. Petitioner built a dock on Honeymoon Lake next to his property. Over the dock, Petitioner constructed a wooden platform to use as his heliport. Petitioner built the platform directly into the submerged lands beneath Honeymoon Lake. The platform is approximately 36 feet long by 32 feet wide. The platform rests on wooden pilings and is raised to about 15 feet above Honeymoon Lake. The platform is connected to the shore by a wooden foot bridge. Petitioner harbors two boats at the dock beneath the platform. Petitioner constructed the heliport for his private, recreational use only. Petitioner wants to use his heliport without applying for approval from the Department. Honeymoon Lake is a private (not State) body of water whose history goes back to a deed issued in the late 18th century. In 1878, President Rutherford B. Hayes, on behalf of the United States government, deeded Honeymoon Lake to the original developer of the area. Honeymoon Lake is approximately 300 feet wide at Petitioner’s property line. The area of the lake where Petitioner’s heliport is located is owned by the Stillwaters Homeowners Association and used as a recreation area. On September 5, 2017, after Petitioner constructed the platform, the Stillwaters Homeowners Association Board of Directors approved Petitioner’s heliport by resolution. Prior to this administrative action, Petitioner applied to the Federal Aviation Administration (“FAA”) for airspace approval to operate his heliport on Honeymoon Lake. On April 13, 2017, the FAA provided Petitioner a favorable Heliport Airspace Analysis Determination in which the FAA did not object to Petitioner’s use of his helicopters in the airspace over Honeymoon Lake. The FAA’s determination included an approved Approach/Departure Path Layout and Agreement with the 45th Space Wing, which operates out of nearby Patrick Air Force Base. Petitioner also represents that the heliport platform does not violate the Brevard County Building Code. In support of this assertion, Petitioner introduced the testimony of Brevard County Code Enforcement Officer Denny Long. In August 2017, after receiving a complaint that Petitioner’s heliport might have been built in violation of Brevard County ordinances, Mr. Long inspected Petitioner’s dock structure. Upon finding that Petitioner had already constructed his platform, Mr. Long could not identify a code provision that he needed to enforce. Therefore, he closed his investigation. Petitioner contends that the Honeymoon Lake area is not taxed by Brevard County. Neither is Brevard County responsible for any improvements thereon.3/ Because his heliport is situated over water and not land, as well as the fact that he will only use the heliport for occasional, private use, Petitioner believes that he is entitled to the exemption under section 330.30(3)(f) from obtaining the Department’s approval prior to landing his helicopters at his heliport. Section 330.30 states, in pertinent part: SITE APPROVALS; REQUIREMENTS, EFFECTIVE PERIOD, REVOCATION.— (a) Except as provided in subsection (3), the owner or lessee of any proposed airport shall, prior to . . . construction or establishment of the proposed airport, obtain approval of the airport site from the department. * * * (3) EXEMPTIONS.—The provisions of this section do not apply to: * * * (f) Any body of water used for the takeoff and landing of aircraft, including any land, building, structure, or any other contrivance that facilitates private use or intended private use. Petitioner asserts that the exemption described in section 330.30(3)(f) extends to a “building, structure or any other contrivance” that is constructed on, or over, a body of water. Therefore, since his landing site is situated over water, Petitioner argues that his heliport should be considered a “structure . . . that facilitates private use” of a “body of water for the takeoff and landing of aircraft” which qualifies him for an exemption from Department approval. Although Petitioner does not believe that he needed to apply to the Department for approval of his proposed landing site, he did so at the FAA’s suggestion. Around April 2017, Petitioner contacted the Department inquiring about the process to obtain an airport license or registration for his heliport. On September 25, 2017, however, the Department denied Petitioner’s application as incomplete. Pursuant to section 330.30(1)(a), the Department instructed Petitioner to produce written assurances from the local government zoning authority (Brevard County) that the proposed heliport was a compatible land use for the location and complied with local zoning requirements. In response, instead of supplementing his application, Petitioner asserted to the Department that his heliport was exempt from registration under section 330.30(3)(f) because it was located in a private body of water. On April 6, 2018, the Department issued Petitioner a formal “Letter of Prohibition.” The Letter of Prohibition notified Petitioner that he was not authorized to operate his helicopter from his dock/heliport without first registering his heliport with the Department and obtaining an Airport Site Approval Order. The Letter of Prohibition further stated that Petitioner’s heliport did not meet the exception from site approval and registration requirements in section 330.30(3)(f). The Department expressed that the exception only applied to “a body of water used for the takeoff and landing of aircraft.” The exception did not apply to the platform Petitioner desired to use as his landing site. Petitioner challenges the Letter of Prohibition in this administrative hearing. The Department, through Alice Lammert and Dave Roberts, asserts that Petitioner must register his private-use heliport before he may use it to takeoff or land his helicopters. Ms. Lammert and Mr. Roberts testified that the Department has consistently interpreted section 330.30(3)(f) to pertain to actual bodies of water, e.g., waters used by seaplanes or other floatable aircraft. Both Ms. Lammert and Mr. Roberts commented that Petitioner is not seeking to takeoff or land his helicopters on Honeymoon Lake. Petitioner intends to use a platform, situated 15 feet above Honeymoon Lake, on which to land his helicopters. Ms. Lammert and Mr. Roberts expressed that Petitioner’s construction of his heliport over water does not change the fact that his heliport is a fixed wooden structure and not a “body of water.” Consequently, Petitioner must obtain Department approval prior to using the platform for his helicopters. Ms. Lammert and Mr. Roberts added that if Petitioner’s helicopters were equipped with pontoons and landed directly on the surface of Honeymoon Lake, his “landing site” would qualify for the exemption set forth in section 330.30(3)(f). Ms. Lammert and Mr. Roberts further explained that the Department is responsible for ensuring that aircraft operating in Florida takeoff and land in safe, controlled areas. Through section 330.30, the Department is tasked to inspect all potential airport sites to make sure that the landing zones do not pose a danger to any aircraft (or helicopter) that might use them. Safety is the Department’s primary focus when approving private airport/heliport registrations. For example, as Ms. Lammert explained, the Department would inspect Petitioner’s heliport to ensure that the platform is sturdy enough and wide enough to bear the weight of Petitioner’s helicopters. The Department might also determine whether the platform should be equipped with a safety net. Regarding Petitioner’s argument that the Department should consider his heliport a “structure . . . that facilitates private use” of a body of water, Mr. Roberts understands the exemption under section 330.30(3)(f) to include docks that are used for persons disembarking from a seaplane or other floatable aircraft. The exemption, however, does not apply if the dock, itself, serves as the landing site. Regarding Petitioner’s reference to the FAA analysis determination, Mr. Roberts explained that while the FAA has authority to approve the use of the airspace over Honeymoon Lake, the authority to approve the landing site remains with the Department. Based on the evidence and testimony presented at the final hearing, Petitioner did not prove, by a preponderance of the evidence, that his heliport qualifies for an exemption under section 330.30(3)(f). Accordingly, prior to his use of his heliport to takeoff or land his helicopters, he must apply for site approval from the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order denying Petitioner’s request for an exemption from Department approval under section 330.30(3)(f) prior to the use of his wooden platform as a heliport. DONE AND ENTERED this 25th day of October, 2018, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2018.
The Issue Under the standards established by Section 330.30, Florida Statutes, and Rule Chapter 14-60.05, Florida Administrative Code, the issues presented for resolution are: Whether the site is adequate for the proposed private seaplane base. Whether the proposed seaplane base will conform to minimum standards of safety. Whether safe air traffic patterns can be worked out for the proposed airport and for all existing airports and approved sites in the vicinity.
Findings Of Fact Based on the stipulations of the parties, the testimony of the witnesses, and the exhibits admitted in evidence at the hearing, I make the following findings of fact. On August 24, 1983, Mr. Ruzakowski of 159 San Remo Drive, Venetian Shores Subdivision, Islamorada, Florida, filed an application with attachments with the Department for a private seaplane base license. The application of the proposed private seaplane base to be known as Plantation Key seaplane base proposes that landing and taking off would be in the open water area known as Florida Bay or Cotton Key Basin and that the seaplane would be parked on a ramp at the applicant's home. In order to reach the applicant's waterfront home, the application proposes a taxi route along Snake Creek which connects Florida Bay to the applicant's home. The application had attached to it a letter of zoning approval from the Building and Zoning Department of Monroe County signed by Mr. Joseph E. Bizjak, Assistant Building Official, which letter stated that the ramp on the applicant's property ". . . has never been and is not now in violation of any Monroe County zoning codes." The Department of Transportation has never been notified by the Monroe County Zoning and Building Department of any withdrawal of this zoning approval. Also attached to the application was a letter from Robert Billingsley supervisor of the program development section of the Federal Aviation Administration which stated that the FAA airspace approval for applicant's seaplane was still current and in effect. Mr. Ruzakowski's 1976 application for a seaplane base proposed using Snake Creek as a take-off and landing area. The instant application only proposes to use Snake Creek as a taxi area to and from Mr. Ruzakowski's residence (where he proposes to park the airplane) and the take-off and landing area in Florida Bay. The distance from Mr. Ruzakowski's residence to the take- off and landing area is approximately one mile. Upon receipt by DOT of Mr. Ruzakowski's 1983 application, an on-site feasibility inspection of the site was made by Mr. Steve Gordon of the DOT's Sixth District in Miami, Florida. Mr. Gordon, a District Aviation Engineer, has extensive experience as an airplane pilot and as an airport site inspector. Mr. Gordon conducted an adequate on-site inspection and concluded that the proposed seaplane base appeared to be in compliance with the applicable statutory and rule provisions. Specifically, Mr. Gordon concluded that the take-off and landing operations would be away from the area of the homes in the development, that the ramp on Mr. Ruzakowski's property was adequate for safe approach upon his lot, that his lot was a safe place to park his seaplane, that Snake Creek was wide enough for taxiing the airplane, that the take-off and landing area contained no obstructions or hazards, and that there was no hazard to other airports in the area. Following the inspection, Mr. Gordon wrote to Mr. Ruzakowski and to the DOT officials and advised them that the proposed site was feasible for a private seaplane base under the applicable licensing requirements. Thereafter, the DOT sent notice to approximately 200 addressees advising them of the proposed private seaplane base application, the inspection results, the DOT's intent to issue site approval and advising of a public meeting on the matter. The notice was also published in The Florida Keys Keynoter newspaper on October 13, 1983. Among the addressees notified by mail were adjacent property owners, the Monroe County Building and Zoning Department, the Monroe County Board of County Commissioners, and the FAA. The Marine Patrol and the Coast Guard were also notified of the public hearing. Neither the Monroe County Board of County Commissioners nor the Monroe County Building and Zoning Department sent a representative to attend the public hearing. Following the public hearing and consideration of all of the objections stated at the public hearing, Mr. Gordon recommended that site approval be granted for the proposed seaplane base. There are other licensed seaplane bases in Florida in which the take- off and landing areas are in open water such as bays and in which seaplanes using the base taxi to and from the parking area in channels used by boats. The airplane owned by Mr. Ruzakowski which he proposes to use at the subject seaplane base is a modified Republic Seabee. The modifications include modifications which make the airplane more maneuverable, quieter, and dependable. When taxiing on the water the pilot of the Seabee has excellent visibility of everything from very close to the airplane to infinity. The airplane is very maneuverable on the water, due in part to the fact that it has both water and air rudders. The airplane can be stopped very quickly on the water because the direction of the propeller thrust can be reversed. The propeller reversal also makes it possible for the airplane to back up while on the water. The airplane can taxi on the water as slowly as 5 miles per hour. Once it reaches the take-off area, the actual take-off run lasts only about 18 or 20 seconds. The airplane is approximately 40 feet wide from wingtip to wingtip. The tip of the airplane propeller is at least four feet above the water. As a result of the excellent visibility from the airplane and the high degree of maneuverability of the airplane, it is easy for the pilot of the airplane to observe and avoid any boats or other objects in the vicinity of the airplane. While operating on the water the airplane is subject to the same navigation rules which apply to boats and ships. The applicant, Mr. Ruzakowski is a 73 year old retired airline pilot. He has between 20,000 and 22,000 hours of flying experience, approximately 75 percent of which was as pilot in command. He has flown a large number of different types of airplanes, including land based airplanes, seaplanes, and amphibians. He has had extensive experience in both single- engine and multi- engine aircraft. In 54 years of flying he has never had an accident. Safety is the main factor in all of his flying. Mr. Ruzakowski is an FAA consultant engineer and does all of the maintenance and repairs on his own airplane. He has invented an improved control system for the Republic Seabee aircraft and has received FAA approval for his invention to he installed on other Republic Seabees. Mr. Ruzakowski appears to be in excellent physical and mental condition; at the hearing he appeared to be strong, agile, and alert. These appearances are confirmed by the fact that he currently holds a valid FAA pilot's license and medical certificate. He has never been denied an FAA medical certificate. His vision is excellent and is perhaps getting better because several years ago his FAA medical certificate required him to keep reading glasses in the aircraft, but his current medical certificate contains no such restriction. Snake Creek is used by a variety of large and small commercial and pleasure boats. The volume of boat traffic varies from day to day and also by time of day. At times there are also swimmers and divers in Snake Creek and in the designated take-off and landing area. However, none of the boat traffic is incompatible with the operation of the applicant's airplane because the visibility from the airplane and the maneuverability of the airplane are such that the pilot of the airplane has as much or more ability to avoid or prevent a collision as does the operator of any of the boats and ships using the waterway.
Recommendation Based on all of the foregoing it is recommended that the Department of Transportation issue a Final Order approving the issuance of Site Approval Order No. 83-34. DONE and ORDERED this 15th day of May, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 15th day of May, 1985. COPIES FURNISHED: Joe Miklas Esquire Post Office Box 366 Islamorada, Florida 33036 James Baccus, Esquire Post Office Box 38-1086 Little River Station Miami, Florida 33138 Judy Rice, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, MS-58 Tallahassee, Florida 32301-8064 Honorable Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, MS-58 Tallahassee, Florida 32301-8064
The Issue The issue is whether Petitioner owes tax, penalty, and interest under Section 212.05(1)(a)2., Florida Statutes,1/ for an aircraft that it allegedly purchased and used in Florida.
Findings Of Fact Petitioner is a national banking and trust company headquartered in Utah. It does not have any operations or personnel in Florida. Petitioner routinely serves as “owner trustee” for non- U.S. citizens who want to register aircraft with the Federal Aviation Administration (FAA). Petitioner charges a fee (typically $4,000) to set up the trust, as well as an annual fee (typically $2,000) for its services as “owner trustee.” Petitioner holds legal title to the aircraft in its capacity as “owner trustee” because the FAA regulations do not allow non-U.S. citizens to register aircraft. Petitioner does not have any operational control over the aircraft even though it holds legal title. The tax assessment at issue in this case relates to a Cessna Citation 650 jet, tail number N385EM (hereafter “the aircraft”), which Petitioner holds legal title to as “owner trustee” pursuant to a Trust Agreement dated April 28, 2007. The trustor and beneficiary under the Trust Agreement is MAW.ZC, LLC, which is a Delaware limited liability company, controlled by a non-U.S. citizen, Nelson Ceballos. The sole purpose of the trust was to “ensure the eligibility of the Aircraft for United States registration with the [FAA].” The aircraft was purchased from Southern Jet Center (SJC) in Sanford, Florida, on May 3, 2007, for $3.74 million. The “purchaser” identified on the Bill of Sale was “Wells Fargo Bank Northwest, NA as Owner Trustee under Trust Agreement dated 4/28/07.” MAW.ZC, LLC, was not mentioned on the Bill of Sale. Petitioner’s witness, Jon Croasman, testified that MAW.ZC, LLC, negotiated the purchase of the aircraft with SJC, and then assigned the purchase right to Petitioner as “owner trustee” so that the aircraft would not lose its tail number and it would be easier to register the aircraft with the FAA. The record does not contain a written purchase agreement between MAW.ZC, LLC, and SJC or a written assignment of the purchase right from MAW.ZC, LLC, to Petitioner. According to Mr. Croasman, SJC was “kind of an unsophisticated seller” and it did not require these documents. Mr. Croasman was the only witness with personal knowledge of the events surrounding the purchase of the aircraft who testified at the final hearing. His testimony was logical and persuasive and is accepted as credible despite the absence of corroborating documentation. Petitioner did not pay anything to SJC for the purchase of the aircraft. The entire $3.74 million purchase price was paid by MAW.ZC, LLC. Petitioner was the purchaser of the aircraft in name only. The real purchaser was MAW.ZC, LLC. On May 4, 2007, Petitioner filed an application to register the aircraft with the FAA. The applicant listed on the application form was “Wells Fargo Bank Northwest, National Association, not in its individual capacity but solely as Owner Trustee under a Trust Agreement dated as of 4/28/07.” On the same day, the FAA issued a certificate of registration for the aircraft. The certificate was issued to “Wells Fargo Bank Northwest NA Trustee.” Registration of an aircraft with the FAA has no bearing on its ownership. Indeed, the official registration document for the aircraft issued by the FAA states: “This certificate is issued for registration purposes only and is not a certificate of title. The Federal Aviation Administration does not determine rights of ownership as between private parties.” On May 7, 2007, Petitioner filed with the Department an Affidavit for Exemption of Aircraft Sold for Removal from the State of Florida by a Nonresident Purchaser (hereafter “the Removal Affidavit”). The affidavit identified the purchaser of the aircraft as “Wells Fargo bank Northwest, NA, not in its individual capacity but solely as Owner Trustee for MAW.ZC, LLC.” The aircraft remained in Florida undergoing repairs at SJC from the date of purchase until July 2, 2007, when it was flown to Venezuela where it was based. It is undisputed that the aircraft left Florida within 20 days after the initial repairs were completed and, therefore, the sale was exempt from the sales tax. The Department informed Petitioner in a letter dated July 13, 2007, that the aircraft could not be brought back into Florida for a period of six months without its becoming subject to Florida’s use tax. Petitioner forwarded this letter to Mr. Ceballos, since he and MAW.ZC, LLC, were responsible for the operation of the aircraft. Petitioner did not exercise any control over the operation of the aircraft after its purchase. In April 2007, prior to the purchase of the aircraft, Petitioner and MAW.ZC, LLC, entered into an Aircraft Operating Agreement. This agreement was executed in conjunction with the Trust Agreement in anticipation of the purchase of the aircraft. The Aircraft Operating Agreement gave MAW.ZC, LLC, “an exclusive right to possess, use and operate the Aircraft.” The agreement required MAW.ZC, LLC, to pay all costs associated with the operation and maintenance of the aircraft. And, with respect to the operation of the aircraft, the agreement required only that MAW.ZC, LLC, cause the Aircraft to be operated by competent personnel in accordance with the manufacturer’s manuals and FAA and other government regulations. On June 15, 2007, Petitioner authorized Captain Alexander Nunez to pilot the aircraft “wherever necessary and specifically including but not limited to Venezuelan air space.” Petitioner interprets the Trust Agreement and the Aircraft Operating Agreement to preclude it from exercising any control over the operation of the aircraft even though Section 9.01(a) of the Trust Agreement gives Petitioner “absolute and complete discretion” in connection with matters involving the ownership and operation of the aircraft so as to protect the interests of the United States. According to Mr. Croasman, the language in Section 9.01 is required verbatim by the FAA for the sole purpose of ensuring that Petitioner, as “owner trustee,” will be able to operate the aircraft without violating its obligations under the Trust Agreement in the unlikely event that the U.S. government needs to use the aircraft for some reason.2/ And, as Mr. Croasman pointed out, Section 9.01(a) requires Petitioner to “exercise this discretion in all matters involving ownership and operation of the Aircraft by the Owner Trustee with due regard for the interests of the Trustor.” The Trust Agreement and the Aircraft Operating Agreement provided that MAW.ZC, LLC, was responsible for keeping records concerning the use of the aircraft. MAW.ZC, LLC, was also responsible for paying any taxes or expenses related to purchase or use of the aircraft. The aircraft crashed in Venezuela on February 18, 2008, killing Mr. Ceballos, Captain Nunez, and the copilot. The original flight records for the aircraft were destroyed in the crash, and no copies of those records were presented at the final hearing. No witness with personal knowledge regarding the operation of the aircraft was presented at the final hearing. The only evidence presented concerning the operation of the aircraft was flight data obtained from two Internet sources, FlightAware and fboweb.com. The FlightAware data was obtained by Department staff as part of their monitoring of the aircraft’s operation during the six-month period after its initial departure from Florida. The fboweb.com data was provided to the Department by David McDonald, the attorney for MAW.ZC, LLC, and Mr. Ceballos, who was acting as Petitioner’s authorized representative during the investigation and protest phase of this case. There is no evidence that Mr. McDonald had any personal knowledge of the information contained in the fboweb.com data, and he did not present it to the Department as his understanding of the aircraft’s operation. Indeed, the letter by which Mr. McDonald transmitted the fboweb.com data to the Department stated that he was “having trouble trying to decipher the information provided by fboweb.com” and that he was providing it to the Department because it appeared to be inconsistent with the FlightAware data conveyed to him by the Department staff. Mr. McDonald never expressly contested the assertion by the Department staff that the aircraft returned to Florida within the six months after it initial departure. His failure to do so was not, under the circumstances, an admission or acquiescence to the Department’s position that the aircraft did return to Florida within that period. Indeed, he informed the Department staff on several occasions that he had not been able to obtain information concerning the aircraft’s operation because the aircraft’s flight records were destroyed in the crash. No credible evidence was presented as to what the FlightAware or fboweb.com services are, or how they obtain the flight data included in their records. For example, when asked to explain her “understanding of what Flight Aware is,” the Department witness used to introduce the data testified only that “[i]t’s a service that the Department subscribes to to track the flights for the aircraft.” The FlightAware data indicates that the aircraft made eleven flights into Florida between September 2007 and January 2008: Flight Date Destination 1 9/22/07 from Arturo Michelena International Airport (Arturo) in Venezuela to Kendall-Tamiami Executive Airport, and then to Simon Bolívar International Airport in Venezuela by way of Ft. Lauderdale Executive Airport on the same day 2 9/29/07 from Arturo to Hollywood International Airport (FLL), and then to Simon Bolivar International Airport the following day 3 10/1/07 from Arturo to FLL, and then back to Arturo the same day 4 10/4/07 from Arturo to FLL, then to Orlando Sanford International Airport (SFB) the following day, with a return to Arturo by way of FLL and Nassau International Airport on October 14 5 10/15/07 from Arturo to FLL, then to SFB on the same day 6 12/16/07 from Arturo to FLL, then to SFB the same day, with a return to Arturo on December 20 7 12/21/07 from Arturo to FLL, and then back to Arturo on the same day 8 12/23/07 from Arturo to FLL, and then back to Arturo on the same day 9 1/3/08 from Punta Cara International Airport to FLL, then to SFB on the same day, with a return to Arturo by way of FLL on January 6 10 1/10/08 from Arturo to FLL, and then back to Arturo on January 12 11 1/13/08 from Arturo to FLL, and then back to Arturo on the same day The fboweb.com data is, as Mr. McDonald noted, difficult to decipher. However, it appears to include most, if not all, of the flights that were listed in the FlightAware data. The fboweb.com data also lists flights on September 8- 9, 2007, between Arturo, FLL, and SFB. Those flights were not listed in the FlightAware data. No findings can be made as to whether the aircraft was indeed in Florida on the dates reflected in the FlightAware or fboweb.com data because that data is uncorroborated hearsay. Even if the FlightAware and fboweb.com data could be relied upon to establish that the aircraft was in Florida on the dates referenced above, only the September 8-9 flights listed in the fboweb.com data and the first eight flights listed in the FlightAware data would be relevant. The other three flights listed in the FlightAware data -– 1/3/08, 1/10/08, and 1/13/08 - – occurred more than six months after the aircraft’s initial departure from Florida on July 2, 2007. Mr. McDonald was able to locate and provide to the Department repair invoices related to only four of the nine relevant flights listed in the FlightAware and fboweb.com data – - 9/8/07, 10/4/07, 10/15/07, and 12/16/07. On each of those occasions, there is documentation showing that the aircraft underwent repairs at SJC in Sanford. There is no evidence that the aircraft underwent repairs in connection with the other five flights listed in the FlightAware data -– 9/22/07, 9/29/07, 10/1/07, 12/21/07, and 12/23/07. Mr. McDonald provided an invoice for a part that was purchased for the aircraft at FLL on September 29, 2007, but there is no evidence that the part was installed in Florida on that trip. No sales or use tax was paid on the aircraft by Petitioner or any other entity or person to Florida or to any other state or country. Petitioner does not dispute the amount of the tax, penalty, or interest calculated by the Department in the Notice of Reconsideration. The tax is $224,400, which is six percent of the sales price of the aircraft; the penalty is $224,400, which is 100 percent of the tax as required by Section 212.05(1)(a)2., Florida Statutes; and interest is accruing at a rate of $67.44 per day, with $27,273.10 of interest having accrued through the date of the Notice of Reconsideration. These amounts were assessed against Petitioner in its capacity as “owner trustee,” not its individual capacity.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order rescinding the assessment at issue in this case. DONE AND ENTERED this 19th day of August, 2009, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 2009.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: As of December 18, 1984, the number of individuals licensed or certificated by the Board of Pilot Commissioners for Tampa Bay was twenty (20) state pilots and four (4) deputy pilots. This number has remained constant since 1981. The petitioner Tampa Tri-County Pilots Association (TRICO) was formed and began operations on January 1, 1984, to provide pilotage services on Tampa Bay. TRICO's membership includes only one state licensed pilot and no certificated deputy pilots. As of December 18, 1984, the membership of the intervenor Tampa Bay Pilots Association included nineteen (19)licensed state pilots and four (4) certificated deputy pilots. While a Tampa shipping agent expressed his feeling of a need for additional pilots on Tampa Bay, no factual basis for this opinion was demonstrated. Indeed, the testimony of this witness indicates that the number of vessels operated by hisagency requiring the use of state pilots was virtually the same in 1984 as it was in 1981 or 1982. This witness did not have knowledge as to the number of licensed pilots and deputy pilots in Tampa Bay between 1981 and 1984 and was not totally familiar with the distinction between state pilots and federal pilots. The number of foreign vessels calling upon Port Manatee has increased over the last several years. However, the Assistant Port Director had no opinion as to whether additional state pilots or deputy pilots were needed to safely or adequately handle this increased traffic. While the Port of St. Petersburg has experienced a slight increase in the total number of vessels coming in and out, the Assistant to the Director of the Port Authority was unaware of which vessels required a state pilot. The number of foreign vessels in and out of the Port of Tampa decreased for each year from 1980 through 1983, and then increased for the year 1984, but still did not reach the number of vessels using the Port in 1980. Tampa Bay's main ship channel is going through a harbor deepening project which will enable it to accommodate deeper draft vessels. These vessels will be capable of carrying larger tonnage amounts, giving rise to the possibility of a reduction in the total number of vessels entering and leaving the ports of Tampa Bay. At the present time, however, there is a lack of docking or berthing facilities available to accommodate the larger vessels. The petitioner TRICO, with only one licensed state pilot, has had to turn down piloting jobs. While there have been three occasions when the intervenors were not able to provide a pilot to a vessel immediately upon its request, it was not established whether the reasons for such occurrences were because the vessel arrived unexpectedly or because there was, at the time, a shortage of available pilots. The intervenor's business records indicate that in 1980, approximately 6,000 vessels were moved by 18 state pilots and 7 deputies providing a total work capacity equivalent to approximately 22 individuals. In 1981, 20 pilots and 4 deputies handled 5,803 vessel movements. The same number of pilots and deputies handled 5,506 vessel movements in 1982 and 5,728 vessel movements in 1983. In 1984, with 19 licensed state pilots and 4 deputy pilots, the intervenor provided piloting services for 5,563 vessel movements. In the same year, the petitioner's one state licensed pilot handled 672 vessel movements. Approximately 35% to 40% of these vessel movements did not require state licensed pilots, but merely federally licensed pilots. These vessel handling statistics for the years between 1980 and 1984 demonstrate that the average number of jobs or vessel movements per pilot were 293 in 1980, 235 in 1981, 230 in 1982, 240 in 1983 and 259 in 1984. Pilot members of the Tampa Bay Pilots Association work a schedule of three weeks on-duty and three weeks off-duty. At any given time, one-half of the licensed pilots are on-duty with the remaining one-half being off-duty, but subject to being recalled for duty should weather conditions or other circumstances dictate the need for additional pilots. As a result of this rotation system, which is similar to that utilized by pilots in other ports, the intervenor has a 100% relief capacity. It is also the policy of the intervenor to guarantee a rest period between vessel movements for all pilots during their three weeks of duty. If a pilot or deputy pilot has less than six hours of rest between piloting assignments, he is guaranteed eight hours of rest after the second assignment. Additional pilots remain on standby to assure that this rest policy is effectuated. The intervenor also maintains individual cottages on Egmont Key which the pilots on duty may use for sleep or rest between jobs. Egmont Key, located at the mouth of Tampa Bay, is ideally located for the quickest transit out to any entrances from the sea.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the petitioner's request that additional pilot and deputy pilot openings for Tampa Bay be declared be DENIED. Respectfully submitted and entered this 6th day of September, 1985, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 1985.
Findings Of Fact At all times relevant hereto, David E. Rabren was licensed as a Tampa Bay state pilot and was president of the Tricounty Pilot's Association (TRICO). At the time the movement of the OCEAN LORD occurred, there was only one state licensed pilot who was a member of TRICO. That was David E. Rabren. Other members held only federally issued pilot's licenses. Prior to the movement of the VOMAR, a second state licensed pilot joined TRICO. At present, there are four licensed state pilots and one deputy pilot associated with TRICO. The vessel OCEAN LORD arrived in Tampa Bay February 18, 1986, and was piloted by Captain Rabren to its berth at C. F. Industries (CFI). After taking on cargo, the OCEAN LORD was moved the same date to Gadsden Anchorage. During this move, Captain Murphy, a federally licensed, but not state licensed, pilot was on board. Captain Murphy is associated with TRICO. On February 21, 1986, the OCEAN LORD was moved from Gadsden Anchorage to the CSX Transportation dock at Rockport. Again, Captain Murphy was the pilot. On September 21, 1986, the vessel VOMAR was moved from Rockport to a dock at Big Bend with Captain Murphy as the pilot. Anita Rabren determined that the movement could be accomplished with a federally licensed pilot on board. On October 5, 1986, the vessel ASPEN, an American flag vessel, arrived at Tampa Bay, and the ship's agent requested TRICO provide a pilot. Due to a misunderstanding of the agent's statement that the ASPEN was coming from the west coast, Anita Rabren assumed this was from the west coast of the United States. Actually, the ASPEN's last port of call was in Korea. Had the vessel come from a west coast of the United States port, the voyage would have been a coastwise trip, and a federally licensed pilot would be required. A federally licensed pilot was assigned to pilot the ASPEN. The last port of call of the ASPEN was ascertained after the pilotages up Tampa Bay commenced, and the fact that an improperly licensed pilot was used was reported forthwith. TRICO paid a double pilot fee to the Tampa Bay Pilot's Association. Tampa Port Authority has jurisdiction over all of Hillsborough County and establishes rules and regulations for that area. They do not regulate pilotage of vessels. Many of the terminals in Hillsborough County are owned by the Port Authority, but some are privately owned such as Big Bend and Rockport, both of which are in the port of Tampa. The Port Authority controls the allocation of berths at all terminals owned by the Port Authority, but does not control the berths at privately owned terminals. The CFI terminal is owned by the Port Authority who establishes wharfage rates and docking rates at this terminal. The berths at Rockport and Big Bend are privately owned, and tariff rates are not set by the Port Authority. CSX Transportation owns a dock at Rockport where phosphate is loaded onto vessels. No wharfage or dockage charge is levied, but such charges are included in charges for the commodity loaded. Ships can clear customs at any of the terminals above noted. The Big Bend facility is under the jurisdiction of Gulf Coast Transit Company. Vessels bring coal to Big Bend for use by Tampa Electric Company. The AGRICO terminal at Big Bend is used for loading phosphate rock. All of these privately owned terminals are licensed by the Tampa Port Authority to whom they pay a fee and submit reports of their activities. The Tampa Port Authority charges a fee to vessels who load or unload cargo at the Gadsden Anchorage which is also in the port of Tampa. Section 310.002(4), Florida Statutes, defines "port" to mean, any place in the state in which vessels enter and depart. For Tampa Bay, this section lists Tampa, Port Tampa, Port Manatee, St. Petersburg and Clearwater as ports. Of those listed ports, Tampa and Port Tampa are in Hillsborough County and come under the jurisdiction of the Tampa Port Authority. No evidence was submitted showing the areas encompassed by the Port of Tampa and Port Tampa. The Port of Tampa's Terminal and Facilities Map (Exhibit 5) showing the port facilities at Tampa, Florida, does not show the facilities at Port Tampa; it shows only those facilities on the east side of the Tampa peninsula, and does not reach as far south as Big Bend. Presumably, if there are only two ports in Hillsborough County that portion of Hillsborough County west of the Tampa peninsula would comprise Port Tampa, and that portion of Hillsborough County east and south of the Tampa peninsula would comprise the Port of Tampa. If so, all of the movements here complained of occurred in the Port of Tampa. Exhibit 5 supports this conclusion. Finally, no credible evidence was presented that Respondent assigned a federally licensed, but not a state licensed, pilot to the OCEAN LORD, VOMAR and ASPEN as alleged, except Exhibit 3 which states the assignment of a federally licensed pilot to the Aspen was due to an error on the part of Captain Rabren. The direct testimony presented in this regard is that Anita Rabren assigned federally licensed pilots to those ships. Further, this determination that use of a federally licensed pilot for those movements of foreign flag vessels within the Port of Tampa was proper was made by Anita Rabren after receiving legal advice regarding the in-port movements of foreign flag vessels that can be piloted by a federally licensed pilot.
Findings Of Fact On September 22, 1981, the Respondent, Sonoma International (hereafter Sonoma) , through its vice president, Claudette Bruck, filed an application with the Florida Department of Transportation (hereafter D.O.T.) for a license to construct and operate a private airport to be known as Greener Pastures Private Airport. The proposed airport site is located on Loxahatchee Road (SR 827) in an unincorporated area of southwest Palm Beach County. The parcel on which the proposed airport is to be located consists of approximately 63.42 acres and is owned by Sonoma. The property is approximately 800 feet east to west and 3900 feet north to south. The proposed landing strip would be located on the western-most portion of the property and will run the entire length of the property except for any applicable setback requirements. Petitioner, John J. Burton, (hereafter Burton) owns approximately 15 to 20 acres of undeveloped land in the area of the proposed site. The eastern portion of Burton's property is directly north of the location of the proposed landing strip. The Burton property is approximately 300 feet north of the Hillsborough Canal and approximately 600 to 800 feet north of the proposed airport site. The Petitioner, Florida National Properties, Inc., owns the land contiguous to the southern boundary of the proposed site. This property is also undeveloped. The Loxahatchee National Wildlife Refuge is located approximately 3/4 of a mile north of the proposed site. The area where the proposed site is located remains undeveloped. Sonoma proposes to sell subdivided five (5) acre parcels with the landing strip located on the western portion of each lot. The landing strip is for the use of the owners of these parcels and their guests. The proposed landing strip will be a grass strip and will run the full length of the property. D.O.T. reviewed Sonoma's application, performed site inspections and found the proposed site was adequate to meet the site approval requirements set forth in Rule 14-60.05, Florida Administrative Code. The site inspections were performed by Mr. Boswell and Mr. Brown of D.O.T., who submitted reports of their findings. On October 20, 1982, D.O.T. entered a site approval order which contained the following conditions: All operations are to be conducted in VFR weather conditions. Use of the airstrip is limited to property owners and their invited guests. Left traffic patterns will be established for Runway 18 and Right traffic patterns will be established for Runway 36. Aircraft arriving or departing the airport will avoid overflying the Loxachatchee National Wildlife Refuge below 2000 feet AGL. Users of the airport and invited guests will be informed of possible bird activity in the vicinity of the site. Traffic patterns and operational procedures are subject to review by this Department prior to licensing or re-licensing. The landing strip surface for private airports must be a minimum of 1800 feet in length with a primary surface width of 100 feet and a usable width of 50 feet. The proposed site is more than adequate for a landing strip with these dimensions. A private airport must have and maintain approach zones which are a trapezoidal area increasing in width from 50 feet either side of the runway centerline at a distance of 3000 feet outward from the ends of each runway. Rule 14-60.07(5), Florida Administrative Code. These approach zones must be clear of obstructions above a glide path of 20:1 from the ends of each usable runway. Rule 14-60.07(6). It is not necessary for the applicant to own or control the ground area beneath the approach zones. The approach zones for the proposed airport will extend over property owned by the Petitioner Burton on the north and Petitioner Florida National on the south. Neither of the Petitioners has granted an easement or other right of use of the airspace above their property. There are presently no obstructions which will prevent Sonoma from obtaining the necessary approach zones at the time of licensing. There are Australian Pines located on the northern tip of Sonoma's property and along the right-of-way of Loxahatchee Road where it abuts Sonoma's property on the north. These trees are 80 to 90 feet in height. By constructing the landing strip the full length of Sonoma's property, the threshold for landing may be displaced to the south of these trees. The 90 foot height will require a displacement of 1800 feet in order to obtain the 20:1 glide path clear zone. With a runway length of 3700 feet (3900 feet minus 2 x 100 feet set back) leaves a usable runway length of 1900 feet. This exceeds the minimum 1800 feet requirement. The trees may be topped or removed prior to final inspection. Although there are bird-nesting areas within the Loxahatchee National Wildlife Refuge from which regular flights of birds occur, these flights are fairly predictable as to time and location and will not create an abnormal safety hazard for the proposed site. There are also microwave towers in the general area of the proposed site, but these towers do not constitute a hazard to planes landing or taking off from the proposed airport. Safe air traffic patterns can be developed on the site for takeoff and landing. Herbert L. Brown, an Aviation Specialist with D.O.T., flew low approaches over the proposed site on two different occasions on December 2, 1982, and April 22, 1983. Mr. Brown flew right-hand traffic patterns and approaches to Runway 36 and left-hand patterns and approaches to Runway 18. On each occasion, he could have landed safely on the proposed site but made a go- around. Mr. Brown did not detect any potential hazards on either of these flights and determined that safe air traffic can be developed on the proposed site. On April 29, 1982, the Board of County Commissioners of Palm Beach County approved Sonoma's petition for a Special Exception to the Palm Beach County zoning ordinance. This approval permits Sonoma to construct a private use airport on the proposed site with the following conditions: The developer shall convey to Palm Beach County within ninety (90) days of Special Exception approval 80 feet south of the south right-of-way line of the Hillsboro Canal for the ultimate right-of-way for State Road #827. The developer shall contribute Three Thousand Dollars ($3,000) toward the oust of meeting this project's direct and identifiable traffic impact, to be paid on a pro-rata basis at the time of issuance of the building permit(s). A 100 ft. setback shall be required between the runway edge and any property line. No structure or navigation aids shall be closer than 50 ft. from any property line. Use of this airstrip shall be limited to owners of this property and their guests. The developer has agreed, and shall limit the County's liability for any future condemnation to exclude any improvements constructed as a result of this Special Exception. Airspace approval for the proposed site was obtained from the FAA on February 24, 1982. A private use airport constructed on this site will conform to the minimum standards of safety for a private use airport if constructed in accordance with D.O.T. requirements. The determination of such conformity is made by D.O.T. in a final inspection prior to licensing. The procedure for obtaining a private use license is a two-step procedure. The first determination is site approval and basically addresses the question of whether it is feasible to establish a private use airport on the proposed site which will meet D.O.T. requirements. In this phase, no detailed construction plans or site plans are required. After site approval, the proposed licensee prepares the site and constructs the airport. Upon completion, D.O.T. makes a final inspection to determine if all D.O.T. requirements have been met. If the airport fails to meet any D.O.T. requirement, the license will not be issued.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED: That the Department of Transportation issue its site approval order to Sonoma International for the proposed private airport, subject to those specific conditions set forth in the Notice of Intent and proposed Site Approval Order. DONE and ENTERED this 18th day of January, 1984, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 18th day of January 1984. COPIES FURNISHED: Gerald K. Burton, Esquire Mark A. Seff, Esquire 2740 Hollywood Boulevard Hollywood, Florida 33020 Paul A. Pappas, Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32301 Thomas G. Wright, Jr., Esquire Gregory S. Sollitto, Esquire 3300 University Drive Coral Springs, Florida 33065 Leslie T. Ahrenholz, Esquire Post Office Box 2656 Fort Myers, Florida 33921 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32301
The Issue The issue is whether the Division of Administrative Hearings has jurisdiction over an alleged unlawful employment practice which occurred on the premises of a federal enclave.
Findings Of Fact Respondent asserts that Petitioner's allegations arose during her employment at Eglin Air Force Base, Florida. Respondent also asserts that Petitioner never worked for it in Florida at a site other than Eglin Air Force Base. Petitioner's Charge of Discrimination and Petition for Relief do not refute these assertions. It is uncontested that Eglin Air Force Base, Florida, is a federal enclave. The land on which the base is located was ceded by the State of Florida to the United States on April 26, 1937. At that time, the federal government was given exclusive jurisdiction over the land. The cession deed was recorded on April 27, 1937, and states as follows in pertinent part: I Fred P. Cone, Governor of the State of Florida, in the name and by the authority of said State and pursuant to the statutes of said State in such cases made and provided, do hereby cede to the United States of America, exclusive jurisdiction over said lands so acquired. Secretary of State (Florida), Deeds, Book A, pages 349-352.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That FCHR enter a final order determining that the Division of Administrative Hearings does not have jurisdiction over the issues raised in the instant Petition for Relief and dismissing said petition with prejudice. DONE AND ENTERED this 13th day of May, 1999, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 1999. COPIES FURNISHED: Cynthia K. Faulconer 145 Wright Circle Niceville, Florida 32578 Edmund J. McKenna, Esquire Ford and Harrison, LLP Suite 900 101 East Kennedy Boulevard Tampa, Florida 33602 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Petitioners' alleged liability for sales tax, interest and penalties under Chapter 212, Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the stipulation of facts entered herein, the following facts are found. Petitioners are Florida corporations having their principal place of business at Palm Beach International Airport, West Palm 8each, Florida. Petitioners conduct a fixed base aircraft operation by which they provide services to both aircraft owners and aircraft users. Petitioners are licensed, qualified and certified by the Federal Aviation Administration, the Civil Aeronautics Board, the State of Florida, and Palm Beach County to conduct its operation. Petitioners employ qualified mechanics, technicians, flight instructors, pilots, and consulting and sales personnel for conducting these services, which are described in detail below. Petitioners lease and occupy facilities appropriate for the storage, use, and repair of aircraft. Petitioners have written contractual agreements with aircraft owners in which Petitioners obtain the use of the aircraft. Petitioners pay the owners an agreed amount per hour for the use of the aircraft, which amount varies with the aircraft age and type. (Examples of said agreements are attached to Joint Exhibit number 1.) These agreements use the term "lease" to describe the Petitioners' rights to use the aircraft. The agreements provide that Petitioners will have exclusive supervision, control, and custody of the aircraft during the term of the agreement. The agreements permit the owner of the aircraft to use the aircraft for personal needs, however, so long as such use does not conflict with Petitioners' scheduled use thereof. Petitioners use the aircraft to conduct approved flight instruction for the public, to engage in charter transportation of passengers and property, and to rent to qualified pilots. Petitioners charge the third parties for instruction, charter, or rental and report the proceeds as "income" on their federal tax returns. Petitioners' payments to the aircraft owners are reflected as an "operating or overhead expense" for federal tax purposes. When using the aircraft, Petitioners employ and pay qualified flight instructors, pilots, crews and mechanics to fly and service the aircraft. The aircraft owners have no contractual agreement with these persons. Petitioners are responsible for providing all required inspection, maintenance, and repair services to the aircraft, subject to reimbursement by the owners. The aircraft owners pay the costs of fuel and lubricants used during Petitioners' use of the aircraft. Petitioners provide property damage insurance on the aircraft and liability insurance for the pilots, crew, and third parties who charter or use the aircraft. Petitioners are responsible, at the expiration of the agreement, to return the aircraft to the owner in substantially the same condition as at the commencement of the agreement, except for normal wear and depreciation. Petitioners advertise themselves to the public as a charter flying service and flying instruction service and actively solicit customers for these services. Petitioners are also in the business of selling aircraft and are authorized dealers for Cessna and Piper aircraft companies. Some of Petitioners' purchasers enter into agreements like those attached hereto, granting Petitioners exclusive use and control of the aircraft. Petitioners' purchasers properly pay sale tax under Chapter 212, Florida Statutes, when they purchase aircraft. They do not, insofar as Petitioners are aware, furnish Petitioners with resale certificates which certify that the purchase is solely for resale, in the manner designated by Rule 12A-1.38, Florida Administrative Code. Some of the purchasers have furnished exemption certificates, however, so those purchases were not taxed. Petitioners contend that they are an integrated business for the selling, storing, maintenance, and servicing of aircraft for aircraft purchasers and the provision of chartering and instruction services for third parties. Petitioners contend that their experience and expertise in providing all these services to owners and the general public is economically feasible only through an integrated operation of this nature, or through a substantially greater capital investment. Petitioners assert that the agreements by which they obtain exclusive use of the aircraft are agreements to provide expert management services to the owners, and are not subject to sales tax under Chapter 212, Florida Statutes. Respondent contends that the agreements by which Petitioners obtain exclusive use of the aircraft are separate and distinct from the rest of Petitioners' business, for sales tax purposes. Respondent also contends that the remainder of Petitioners' business is immaterial to the incidence of the tax. Respondent asserts that the agreements described herein are agreements to lease tangible personal property which are taxable as "sales" under Chapter 212, Florida Statutes. Petitioners also assert that certain of the agreements are not taxable because the aircraft owner paid sales tax on the initial purchase of the aircraft, as described in Paragraph 13 above. The Respondent contends that the prior payment of tax at the time of purchase is immaterial, since the purchase was not for resale. The issues thus presented herein are: whether the agreements are taxable transactions, as disputed in Paragraphs 14 and 15; and whether certain of the agreements are specifically nontaxable by virtue of the owner's payment of tax at the time of purchase, as disputed in Paragraph 16. The Respondent originally assessed Petitioners for tax, penalty, and interest in the amount of $19,149.08. It then appeared that in certain of Petitioners' transactions, the aircraft owners were already remitting sales tax. Respondent thereupon revised its assessment. The Respondent now alleges that the following amounts were due on March 15, 1978: Tax $11,144.68 Penalty 557.22 Interest 1,652.86 Total $13,354.76 The penalty and interest figures are subject to revision with the passage of time. The Respondent will update those figures upon issuance of a final order. Petitioners have paid no part of the foregoing assessment. Petitioners have not placed the computation of the amount due in issue, however, in the event they are held to be liable.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED: That the Revised Notice of Proposed Assessment of Tax, Penalties, and Interest under Chapter 212, Florida Statutes, dated March 15, 1978, be asserted against Petitioners pursuant to applicable law, with interest computed to reflect the passage of additional time. ENTERED this 20th day of August, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: John A. Gentry, III, Esquire David K. Miller, Esquire Moyle, Gentry, Jones, Flanigan Assistant Attorney General & Groner, P.A. Department of Legal Affairs Post Office Box 3888 The Capitol, LL04 West Palm Beach, Florida 33402 Tallahassee, Florida 32301
Findings Of Fact Petitioner, Ferdinand C. Irrgang, was employed by the Department of Agriculture and Consumer Services, Division of Forestry on May 9, 1988 as a single engine airplane pilot. At the time of hire, Petitioner's pay grade was 17 in the Florida career service system. He earned the base pay for grade 17 plus 10 percent, or about $19,000 per annum. In 1989, at the request of the Department of General Services (DGS) which also employs pilots to fly State owned aircraft, the Department of Administration conducted a market survey to determine whether the State's classes of airplane pilots were paid competitively, especially the multi-engine and jet aircraft pilots. The survey indicated that labor market conditions reflected that minimum base pay should be raised. In its survey, the Department of Administration (DOA) did not evaluate whether the duties of the Division of Forestry pilots had changed, or whether they were certified firefighters. Although personnel within the Department of Agriculture and Consumer Services (DACS) believed that pilots' duties and responsibilities had changed over time, requests for new or revised job classifications for single engine airplane pilots within the agency were denied in 1989 and the Department of Agriculture did not join in the request for a survey submitted by DGS to DOA. However, effective July 3, 1989, the Department of Administration (now the Department of Management Services) approved a job title revision and an upward pay grade adjustment for all State pilots, including those employed at DGS, DACS and other agencies. As a result, the class of single engine airplane pilots, of which Respondent was a member, was retitled as "single engine reciprocal aircraft pilots" and a pay grade adjustment from pay grade 17 to pay grade 18 was approved. Respondent, and all other pilots in his class, did not receive pay raises as a result of the class pay range adjustment, unless their present salary was below the new minimum base pay. In such cases they received pay adjustments up to the new minimum. Respondent's pay grade on July 3, 1989 was below the new minimum pay for grade 18 and the adjustment in his pay resulted in an increase of about $15.00 per pay period. The Department of Agriculture and Consumer Services sought title and position pay range adjustments for forestry center managers in May 1989. The request was made when DACS determined that these managers positions had evolved over time and became more complex. The Department determined that the position developed a larger and more dispersed staff with additional responsibilities. DACS sought to have the title changed to forestry district manager, as well as a pay range adjustment. The title and pay grade adjustment request for district managers was denied while Adis Vila was Secretary of the Department of Administration. The official denial came on July 13, 1989, after Andy McMullian III became Acting Secretary. On July 19, 1989, a request was made to the Acting Secretary to change the policy for pay grade adjustments such that all employees would receive "difference pay" as set forth in Rule 22A-2.006(3) which was approved. A second request for a job title change and pay grade adjustment for forestry district managers was sent to the DOA. This request was granted on August 17, 1989. Under the State system, a promotion, by definition, results in placement into a position in a higher pay range. However, a promotion, which also indicates more complex or expanded duties or responsibilities, does not automatically result in a pay increase. The positions of aircraft pilots and Division of Forestry district managers are distinct in a number of ways beyond the responsibilities of the positions. State airplane pilots are a universal class, hired by a number of agencies; forestry district managers are a unique class used by only the Department of Agriculture. Pilots are covered by the Fair Labor Standards Act and district managers are not, pilots being eligible for overtime pay while managers are not. Single engine reciprocal airplane pilots with the Division of Forestry may have more dangerous duties than other single engine pilots, such as low- level flying, fire control, and off-airport landings. Unlike other single engine reciprocal airplane pilots, they are certified firefighters; however, they are in the same class as all other single engine reciprocal airplane pilots for the State, with one exception for certified law enforcement pilots. Under the various Secretaries of the Department of Administration, there have been different philosophies of compensation, and different applications of present Rule 60K-2.006. Adis Vila (Vila) was Secretary to the Department of Administration from April 24, 1987 until June 30, 1989; Andy McMullian, III (McMullian) was Secretary of the Department from July 1, 1989 to November 1, 1989; and Aletta Shutes (Shutes) was Secretary of the Department from November 1, 1989 to January 31, 1991. Vila's philosophy was to give pay raises as pay ranges were adjusted when there was a significant change in the responsibilities of the position. Her philosophy was performance based. She sought to further the goal of the Martinez administration of conserving public tax dollars. Vila's application of the rule was to pay employees who received below the minimum of a new pay range up to the new minimum, insuring that employees were paid within the pay range without further adjustments. In that manner, Irrgang's salary was adjusted. Under Vila's administration, over 700 employees in over twenty classes did not receive pay adjustments when pay ranges were adjusted upward unless they received below the new minimum. Under interim Acting Secretary McMullian, an alternative application of the rules was applied. When pay ranges were adjusted upward, employees' salaries were adjusted upward in an amount equal to the difference between the minimums of the old and new pay ranges. In that manner, district managers' pay was adjusted, which was the usual application of the rule applied under the Graham and Askew administrations. McMullian's application of the rule was based upon the fact that employees had not received pay raises for a year and a half, and employees' salaries were stagnant. The Department's interpretation of Rule 60K-2.006 is that it authorizes pay increases when pay ranges are adjusted upward, but the rule does not mandate pay increases. The Department interprets the rule so that it permits managerial discretion by the various Secretaries of the Department in its application. Factors related to the application of the rule, and the Department's interpretation that the rule authorizes, but does not mandate pay increases, include whether funding is available, whether there are significant changes in responsibilities for employees in a class, whether there are labor market changes, or whether there are recruitment and retention problems. The turnover rate for single engine airplane pilots since 1989 has been approximately four percent. The State turnover rate for all employees has been over eight percent which indicates that the State has not experienced a recruitment and retention problem with single engine reciprocal airplane pilots. The Department's interpretation and application of Rule 60K-2.006 does not conflict with the collective bargaining agreement between the State and AFSCME, which controls the terms and conditions of Irrgang's employment. The Department's application of the rule, which has resulted in some classes of employees receiving pay increases when pay ranges have been adjusted, and other classes of employees not receiving pay increases, is not grievable under the contract that covers the terms of Irrgang's employment.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Petitioner's request for retroactive pay be denied. The collateral issue of the Petitioner's recalculation of potential future retirement benefits is, therefore, moot. DONE and ENTERED this 15th day of June, 1993, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 15th day of June, 1993. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7 (in part), 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 20, 26 (in part), 31. Rejected as argument: paragraphs 7 (in part), 26 (in part), 27, 28, 29. Rejected as subsumed, irrelevant or immaterial: paragraphs 10, 19, 21, 22, 23, 24, 25, 29, 32, 33, 34. Proposed findings of fact submitted by Respondent. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7 (in part), 8, 9, 10, 11, 12, 13, 14 (in part), 16, 17, 18, 19, 20, 21, 22, 23, 24, 25. Rejected as argument or comment on the evidence: paragraphs 7 (in part), 14 (in part). Rejected as subsumed, irrelevant or immaterial: paragraph 15. COPIES FURNISHED: William H. Lindner, Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 Susan B. Kirkland, Esquire General Counsel Department of Management Services Knight Building, Suite 309 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 Robert B. Button, Esquire Department of Management Services Knight Building, Suite 308 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 Dana H. Hankins, Esquire 1115 E. Concord Street Orlando, FL 32803
