The Issue The issues in these cases are (1) whether four tax warrants issued by Petitioner against Respondent, Frances Bowers, a/k/a Francis Bowers, d/b/a Shannon Oil Company and Shannon Service Stations, were properly issued; (2) whether two Notices of Freeze and two Notices of Intent to Levy on Respondent were properly issued; (3) whether the allegations of an Administrative Complaint entered March 1, 1995 by Petitioner against Respondent are correct; and (4) whether an Emergency Order of Suspension issued by Petitioner on or about March 3, 1995 was warranted.
Findings Of Fact At all times relevant to this proceeding, Respondent, Frances Bowers, a/k/a Francis Bowers, held a Special Fuel Dealers License #10-011382, a Motor Fuel Jobbers License #09-001450 and Retail Dealer License #’s 77- 000320 and 40-001175. The motor fuel and special fuel licenses were held at Highway 90 East, Caryville, Florida 32427. The retail dealer licenses were held at 1007 North Waukesh Street, Bonifay, Florida 32425 and Highway 279 South, Caryville, Florida 32427. Ms. Bowers operated under the business names of Shannon Oil Company or Shannon Service Station. Ms. Bowers has been engaged in the sale of fuel at various retail locations since 1986. She has engaged in the sale of special fuels (diesel) since May 10, 1985. She has operated as a motor fuel jobber (gasoline) since January 18, 1989. From April 1994 through December 1994, Ms. Bowers purchased special fuel from Murphy Oil Co. From May 1994 through July 1994, Ms. Bowers purchased special fuel from Beards Oil Co. For the period July 1993 through December 1994 Ms. Bowers delivered unsigned, no-remit tax returns to Petitioner, the Department of Revenue (hereinafter referred to as the “Department”). Those returns were delivered by Ms. Bowers to Kathy Jones, a Department Revenue Specialist, at the Department’s Marianna offices. Returns for some months were not remitted. Ms. Bowers subsequently returned to the Department’s Marianna offices and signed the no-remit returns she had filed in the presence of Ms. Jones. The no-remit returns filed by Ms. Bowers indicate that she owed taxes pursuant to Chapters 206, 212, Part II and 336, Florida Statutes. No part of the tax Ms. Bowers indicated was owed was remitted by Ms. Bowers to the Department. For months for which no return was filed, the Department estimated the amount of tax owed. The Department issued Notices of Assessment and Jeopardy Finding to Ms. Bowers in January 1995. These Notices informed Ms. Bowers of the Department’s intent to cause tax warrants for the outstanding taxes owed by Ms. Bowers to be filed with the Clerk of Court. Based upon the no-remit returns, the Department filed four tax warrants. The warrants were for total taxes of $218,801,56. Additionally, penalties, filing fees and interest was included in the tax warrants. The total amount for the four warrants, without the filing fees, was $187,167.18 attributable to Shannon Service Stations and $183,548.97 attributable to Shannon Oil Company. Included in the no-remit returns filed by Ms. Bowers were Special and Alternative Fuel Tax Returns. These returns indicated that Ms. Bowers had purchased “tax-paid” special fuel, meaning that she had paid the tax at the time she purchased the fuel. The tax was allegedly paid to Murphy Oil Co. or Beard’s Oil Co. Based upon the Special Fuel Tax Returns of Murphy Oil Co. and Beard’s Oil Co. no tax was paid by Ms. Bowers on purchases of special fuel purchased by Ms. Bowers. Copies of these returns were accepted into evidence without objection from Ms. Bowers. Ms. Bowers has admitted during her deposition testimony that she owes the outstanding taxes at issue in this proceeding. See Department’s exhibit 14. On or about February 28, 1995, the Department issued two Notices of Freeze and two Notices of Intent to Levy on Frances Bowers, a/k/a Francis Bowers, d/b/a Shannon Oil Company and Shannon Service Stations. Pursuant to the Notices, the Department notified Ms. Bowers that it intended to levy against her assets, consisting of deposits at the Bank of Bonifay, for outstanding taxes. The Department indicated that it was taking this action for nonpayment of taxes, penalty and interest in the sum of $183,548.97 attributable to Shannon Oil Company and in the sum of $187,267.18 attributable to Shannon Service Stations. On or about March 20, 1995, Ms. Bowers filed a Request for Administrative Hearing with the Department. Ms. Bowers contested the proposed levy and alleged that she had not failed to pay any taxes owed. On or about March 1, 1995, the Department issued an Administrative Complaint against Ms. Bowers. Pursuant to the Administrative Complaint, the Department informed Ms. Bowers that Special Fuel Dealers License #10-011382, Motor Fuel Jobbers License #09-001450 and Retail Dealer License #’s 77-000320 and 40-001175 were being revoked. This action was premised upon allegations that Ms. Bowers “failed to file or pay fuel taxes collected for the period of July, 1993 through December, 1994”. The Department also issued an Emergency Order of Suspension on or about March 3, 1995. Pursuant to this Order, the Department suspended the licenses held by Ms. Bowers which the Department sought to revoke in the Administrative Complaint. On or about March 22, 1995, Ms. Bowers sent a Petition for Administrative hearing to the Department in response tot he Administrative Complaint. Ms. Bowers disputed in the Petition whether she had failed to remit outstanding taxes or that she owed such taxes as alleged in the Administrative Complaint. All of the exhibits and the facts of this matter were stipulated to by Ms. Bowers. Ms. Bowers also stipulated to the revocation of her licenses, the emergency suspension order issued by the Department, the issuance of the tax warrants and the Notices of Freeze and Notices of Intent to Levy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered upholding the Emergency Order of Suspension, the Department’s Administrative Complaint, the four tax warrants issued by the Department against Respondent and the Notices of Intent to Freeze and Notices of Intent to Levy. DONE and ORDERED this 25th day of February 1997, in Tallahassee, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February 1997. COPIES FURNISHED: Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Linda Lettera General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399 Albert J. Wollermann John N. Upchurch Assistant Attorneys General Office of the Attorney General The Capitol - Tax Section Tallahassee, Florida 32399-1050 Owen N. Powell, Esquire Post Office Box 789 Bonifay, Florida 32425
Findings Of Fact The Respondent owns and operates the Heart of Florida Truck/Auto Plaza ("Truck-Stop"), on U.S. 27 North, Haines City, Florida. When he purchased the truck-stop in October of 1978, he had no prior experience in the operation of such facilities. (Stipulation, Testimony of Respondent) During September of 1979, the Respondent's fuel supplier notified him that premium gasoline would no longer be delivered. Respondent decided, therefore, to convert his 6,000 gallon premium gasoline tank into a diesel fuel storage tank. (Stipulation, Testimony of Respondent) In order to convert the tank to diesel fuel usage, Respondent pumped out all but a residual consisting of approximately 100 gallons of gasoline and 200 gallons of water. Even with the use of an auxiliary electric pump, the Respondent could not succeed in removing the remaining 238 gallons of residual. (Stipulation, Testimony of Respondent) He, then, sought advice from others on ways to empty the tank, including his jobber, diesel mechanic, truck drivers and trucking firms served by his truck-stop. While no one could suggest a method of removing the residual, they assured Respondent that truckers and diesel mechanics preferred a fuel mixture of 1 gallon of gasoline per 100 gallons of diesel fuel because of improved engine performance. (Testimony of Respondent) Based on such advice, the Respondent filled the tank in question with diesel fuel No. 2 and sold the resulting diesel/gasoline mixture to truckers as diesel fuel No. 2. Because of the presence of gasoline, this diesel fuel had a flash point at 440 F. (Testimony of Respondent, John Whitton, and petitioner's exhibit 3) In mixing the diesel with the gasoline in the tank, Respondent reasonably believed, in good faith, that the resulting mixture would not be hazardous or dangerous to its users. He did not know, and had not been previously notified, that the Department had set standards which strictly regulated the quality of gasoline and diesel fuel sold in Florida. Nor did he know that gasoline and diesel fuel sold in violation of such standards would be subject to confiscation and sale by the Department. (Testimony of Respondent) Although the Department regularly mails freight surcharge information every two weeks to retail gasoline outlets such as Respondent's, it does not periodically disseminate information on its petroleum regulatory program. Copies of the Department's rules, and gasoline standards, are available only on request. (Testimony of Lois W. Thornton and John Whitton) Each month, the Department issues approximately 100 Stop Sale Notices to gasoline retailers in Florida. Approximately 12 percent of these Notices are based on unlawful sale of fuel with flash points below Department standards. In such cases, the Department has consistently followed a practice of allowing the retailer to continue ownership of the fuel (in lieu of Department confiscation) only upon the posting of a bond equal to the value of the substandard fuel. However, notwithstanding the value of the substandard fuel, the Department does not require posting of a bond in excess of $1,000.00. Upon resolution of the administrative enforcement actions in favor of the Department, the bonds are forfeited to the Department, in lieu of confiscation. (Testimony of John Whitton) Since, in this case, the value of the offending fuel far exceeded $1,000.00, the Department allowed, and Respondent willingly posted a $1,000.00 bond with the Department. (Testimony of Respondent and John Whitton, and Petitioner's exhibit 2)
Conclusions Respondent violated the Department's gasoline and oil standards. He should, therefore (in lieu of confiscation) forfeit the cash bond he previously posted.
The Issue Did the Respondent operate an unregistered commercial truck in Florida? Did the Petitioner correctly assess penalties of $4,101 pursuant to Section 316.545, Florida Statutes, regulating operation of commercial vehicles on a highway in the State of Florida?
Findings Of Fact On April 3, 1992, Beverly Griffin inspected and weighed two commercial vehicles owned and operated by the Respondent at the Sneads, Florida weigh station. The drivers produced the vehicles' Wisconsin apportioned registration, but the IRP permits and trip tickets were expired. The vehicles were weighed. One weighed 76,000 pounds, and the other weighed 76,020 pounds. The Respondent admitted the violation; however, the Respondent's representative indicated in his plea of mitigation that the company had obtained required permits and brought its equipment into the state on the trucks; however, it had taken longer than expected to complete the work with the machinery the trucks were carrying, and the permits had expired before the trucks and equipment could leave the state. The Department levied a fined in the amount of $4,101, at 5 cents/ pound for the overweight trucks plus $80 for new trip tickets, $90 for temporary fuel use permits, and $100 penalty for not having current fuel use permits. The Respondent paid the penalties. The statutes governing the operation of motor vehicles provide for strict liability against the owner of a vehicle.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered finalizing assessment of the $4,351 in penalties against the Respondent pursuant to Section 316.545, Florida Statutes. DONE and ENTERED this 17th day of November, 1992, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 1992. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Gary Pomeroy, Vice President The Big Red Machinery Movers, Inc. Post Office Box 274 Butler, WI 53007 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458
The Issue Whether or not the Petitioner, Radiant Oil Company of Jacksonville, is responsible to pay $4,466.64, plus the penalty and interest currently due from a proposed assessment by the Respondent, State of Florida, Department of Revenue, Motor Fuel Tax Bureau, under the alleged authority of Chapter 206, Florida Statutes.
Findings Of Fact The Radiant Oil Company of Jacksonville is a dealer in special fuels within the meaning of Chapter 206, Florida Statutes. The Respondent, State of Florida, Department of Revenue, Motor Fuel Tax Bureau is responsible for the enforcement of the tax provisions found in Chapter 206, Florida Statutes. On October 6, 1977, the Respondent issued a notice of proposed assessment against the Petitioner claiming the amount of tax due to be $4,837.92. This notice of proposed assessment may be found as part of the Composite Exhibit 1 of the Respondent, admitted into evidence. There remains in dispute $4,466.64 together with a possible penalty and interest that would be assessed. This amount of disputed tax, penalty and interest pertains to transactions between the Petitioner and the Boam Company, one of its customers. Specifically, the Respondent is asserting a tax on the amount of 55,833 gallons of diesel fuel which was sold to the Boam Company by the Petitioner. Diesel fuel is a "special fuel" within the meaning of Section 206.86(1), Florida Statutes. The Boam Company is not a dealer within the meaning of Chapter 206, Florida Statutes, it has executed an exemption certificate for the benefit of the Petitioner on a form provided by the Respondent. The certificate is Petitioner's Exhibit 1, admitted into evidence. The facts in the transaction which lead the Respondent to believe that the tax is owed are constituted through the method of Boam Company sending their tanker truck to the depot/business compound of the Radiant Oil Company for purposes of picking up the diesel fuel in question. After the individual deliveries of diesel fuel were made at the compound, that fuel was then taken by the Boam Company's tanker truck to be delivered for utilization by certain off road equipment owned by Boam Company. None of the fuel in dispute was used by any form of over the road vehicle which requires a motor vehicle license. (The 55,833 gallons in dispute does not involve the first 110 gallons of diesel fuel delivered on each pickup made by the Boam Company tanker at the Petitioner's compound.) The Petitioner takes the position that Section 206.87 (4)(a) exempts the questioned transactions from the taxes set forth in Chapter 206, Florida Statutes. That provision of Chapter 206 reads as follows: 206.87 Levy of tax.- The following sales shall not be subject to the tax herein imposed: Sales by a dealer when the special fuel is delivered for home, industrial, commercial, agricultural, or marine purposes, for consumption other than use, or for resale pursuant to paragraph (c) hereof. In particular the Petitioner contends that the sale by Radiant Oil Company to the Boam Company constitutes deliveries for commercial purposes other than use or other than for resale pursuant to paragraph (c) of the same section of Chapter 206, Florida Statutes. That paragraph (c) pertains to sales of five gallons or less by a person not a dealer, when that person does not have facilities for placing this special fuel in the fuel supply system of a motor vehicle, and would not fit the facts of this case. To understand the continuation of the argument by the Petitioner, it is necessary to look at the meaning of the word "use." In Section 206.86(5), Florida Statutes, "use" is defined in this fashion: 206.86 Definitions.- As used in this part: "Use" means the placing of special fuel into any receptacle on a motor vehicle from which fuel is supplied for the propulsion thereof. It is also necessary to understand what "motor vehicle" means within the definition of Chapter 206, Florida Statutes. "Motor vehicle," is defined in Section 206.86(2), Florida Statutes, as being: 208.86 Definitions.- As used in this part: (2) "Motor vehicle" means any form of vehicle machine, or mechanical contrivance which is propelled by any form of engine or motor which utilizes special fuel and is required, or which would be required, to be licensed under the motor vehicle license law if owned by a resident. It is the Petitioner's position that the vehicles which ultimately used the diesel fuel in question, did not require any form of license under the motor vehicle license law in the State of Florida, if they had been owned by a resident, and consequently did not constitute "motor vehicles" within the meaning of the definition found in the aforementioned section. Accordingly, from the point of view of the Petitioner this utilization of the motor fuel was for purposes of consumption other than "use." The Respondent replied to the Petitioner by stating that the exempt category which would apply in this instance is that found in Section 206.87(4)(b), Florida Statutes. That provision reads as follows: 206.87 Levy of Tax. - (4) The following sales shall not be subject to the tax herein imposed: (b) Sales at the dealer's place of business if not more than 110 gallons by a dealer into a receptacle not connected to the fuel supply system of a motor vehicle for consumption other than use. In the mind of the Respondent, this provision of the law creates an exemption for the sale of the first 110 gallons by a dealer, delivered into a receptacle not connected to the fuel supply system of a motor vehicle for consumption other than "use;" and acts to the exclusion of any possible exemption under 206.87(4)(a), Florida Statutes, which has been claimed by the Petitioner. Moreover, the Respondent relied strongly on a portion of the language of Section 206.87, Florida Statutes, which states ". . . unless expressly provided to the contrary in this part, every sale shall be deemed to be for use in this state . . . " Consequently, according to the Respondent, because Section 206.87 (4)(b), Florida Statutes, addresses the kind of transaction that the petitioner is involved in, this exemption creates the only possible exclusion from tax consequences that is available to the Petitioner. The Respondent expresses a retreating argument to the effect that the use of the word "delivered" found in Section 206.87 (4)(a), Florida Statutes, would mean direct delivery to the site of the place of consumption other than "use." After examining the position of the two parties, it is the undersigned's conclusion that Section 206.87(4)(a), Florida Statutes, creates an exemption from the possible tax consequences noted in Chapter 206, Florida Statutes. This conclusion is reached because the use of the word "delivered" in Section 206.87(4)(a) is followed by the word, "for" which creates the impression that delivery could be made either at the business location of the vendor, or at the location of the equipment that would be consuming the fuel for purposes other than "use." Had the legislature intended to limit the exemption found in the quoted provision to only those transactions involving deliveries to the home, industrial location, commercial location, agricultural location, or marine location, it would seem that they would have expressed it in the terms of the necessity to deliver "to the location" as opposed to stating it in terms of delivering "for purposes." In addition, the Section 206.87 (4)(b) Florida Statutes, does not exclude the right of the Petitioner to claim an exemption under Section 206.87(4)(a), Florida Statutes, nor is it inconsistent with that prior provision. Section 206.87(4)(b) , Florida Statutes, when read in pari materia with Section 206.87(4)(a) Florida Statutes, stands on its own and involves a different category of exemption. This category of exemption would include utilization of the special fuel for home, industrial, commercial, agricultural, or marine purposes, as well as any other utilization of the special fuel other than "use." Had it been intended for this provision, Section 206.87(4)(b), Florida Statutes, to exclude the right to exemption found in Section 206.87(4)(a), Florida Statutes, there would have been a connecting phrase between the two subsections (a) and (b) such as the word "or," such as the phrase "unless it exceeds the 110 gallon exemption found in the following subsection," or some similar comment. Since that type of language does not appear, it is unreasonable to assume that the legislature intended to have the prospective exempt organization or person required to accede to the exemption which affords the least advantage. For the reasons stated above the assessment in the amount of $4,466.64 plus the possible penalty and interest asserted under Chapter 206, Florida Statutes, should be rejected.
Recommendation It is recommended that the portion of the proposed assessment to the extent of $4,466.64 together with the penalty and interest be denied, and the Petitioner not be required to make such payment. DONE and ENTERED this 19th day of May, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1978. COPIES FURNISHED: Jack G. Hand, Jr., Esquire 1320 Atlantic Bank Building Jacksonville, Florida 32202 Maxie Broome, Jr., Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32304 John D. Moriarty, Esquire Department of Revenue Room 104, Carlton Building Tallahassee, Florida 32304 =================================================================
Findings Of Fact On March 22, 1977 during a routine inspection of various service stations in Vero Beach, a sample of No. 2 diesel fuel was taken from the pump at English Brothers Truck Stop. Upon analysis at the mobile laboratory the sample was found to be below the minimum flash point for No. 2 diesel fuel and the inspector returned to the station the same day and issued a stop sale notice. (Exhibit 3). Three additional samples were taken, and when analyzed they too were found to be below minimum flash point for this type fuel. Upon receipt of the stop sale notice the station manager notified Respondent. After the fuel had been analyzed at the state laboratory Respondent was notified that since the retail value of the contaminated fuel exceeded $1,000 it could pay $1,000 in lieu of having the fuel confiscated. Respondent owns the fuel at English Brothers Truck Stop until such time as the fuel is removed through the pump for sale. Upon receipt of the notice of the contaminated fuel, which was in one 4,000 gallon tank, Respondent immediately sent three employees to remove the contaminated fuel and clean the tank. Thereafter Respondent attempted to locate the source of the contamination but without success. Since the flash point was lower than allowed for diesel fuel the most likely source of contamination was gasoline which is a higher priced fuel than diesel. Standards used by the Petitioner in determining the required characteristics of fuels are those prescribed by the ASTM. Respondent distributes some 750,000 gallons of diesel fuel per month and this is the first report of contamination of its fuel in the eight and one half years Respondent has been in business.
The Issue The issue in this case is whether the Florida Renewable Energy Production Tax Credit (“Tax Credit”) application filed by Petitioner, Florida Power Development, LLC, A Florida Limited Liability Company (“Florida Power”), was eligible for consideration by Respondent, Department of Agriculture and Consumer Services, Office of Energy (“DACS” or the “Department” or “Office of Energy”).
Findings Of Fact Florida Power is a company which produces power by way of burning biomass materials, primarily wood chips, at its energy plant at 10311 Cement Plant Road, Brooksville, Florida. Most of the energy it produces is sold to Duke Energy. The plant had previously been a coal fired power plant, but Florida Power spent $196 million converting it into a renewable energy facility utilizing biomass fuel. JP Morgan is the parent company of Florida Power. The Office of Energy is the state agency responsible for overseeing the Tax Credit program authorized under section 220.193, Florida Statutes (2016).2/ The Department is empowered to review and approve (or disapprove) all Tax Credit applications which it receives. The Office of Energy is located at 600 South Calhoun Street, Suite 251, Tallahassee, Florida 32399-0001. Applications for a Tax Credit are available on the DACS website, as are the statutes and rules governing the Tax Credit program. The rules specify the date applications are due in each “production year” and set forth the process for filing the applications. Applications addressing the production year at issue in this proceeding of January 1, 2016, through June 30, 2016, were due at the Office of Energy no later than August 15, 2016. Florida Power’s application was not received by the Office of Energy until August 17, 2016, two days after the deadline. As a result, the Department deemed Florida Power’s application ineligible for consideration. Florida Power believes that circumstances surrounding the filing of its application for a Tax Credit excuse or make moot its failure to meet the deadline. Florida Power had filed applications for Tax Credits in prior production years. In 2015, its application was prepared by Tateswood, a company located in Houston, Texas. Tateswood provides management services to several power plants, including several owned by Florida Power. The application was submitted via overnight delivery, i.e., FedEx, from Houston, Texas, to the Office of Energy in Tallahassee, Florida. A senior official from Tateswood, Jeff Winkler, signed the application and had it overnighted to the Department. The application was received timely and approved by the Office of Energy.3/ Florida Power received a tax credit that year of approximately $1.49 million. Around July 28, 2016, Florida Power received the data it needed from Duke Energy to file the Tax Credit application for the 2016 production year (which was less than a full year as the Tax Credit program was expiring). Florida Power’s accountant, Lashauna Filo, also worked for Tateswood in Houston, Texas. She prepared the 2016 application for Mr. Winkler’s signature. Mr. Winkler was traveling, but he was expected to be in Brooksville prior to the application submission deadline. Ms. Filo emailed the application to the Brooksville plant on August 10, 2016, five days prior to the date it was due in Tallahassee. Mr. Winkler signed the application and gave it to Ms. Brown, plant administrator, who was given the task of submitting the application to the Office of Energy.4/ She noted verbiage on the face of the application form which says it can be submitted to the Department via “certified mail or hand delivery.” The due date of August 15 also appeared on the face of the application. Ms. Brown had not been involved with filing a Tax Credit application previously. After conferring with one of her supervisors, Dave Hermanson, she selected the first option--certified mail–-for submitting the application. She typed an envelope, filled out a Certified Receipt form, and put the application into a post office box at the Brooksville, Florida, post office. Ms. Brown did not consider literally hand-delivering the application to DACS because Tallahassee is roughly a four-hour drive from Brooksville, and it seemed there was enough time for the package to get to the Department. Ms. Brown did not understand that “hand delivery” allowed for delivery by overnight courier. Neither Florida Power nor Tateswood have attorneys on staff to provide guidance or assistance in matters such as these. Instead, Ms. Brown relied upon the advice given her by Mr. Hermanson. Unfortunately, the application did not sail smoothly through the USPS system. It was received by a Tampa USPS facility at 8:00 p.m., on August 10, was “coded” for Tallahassee, and departed that facility at 9:43 p.m., the same evening. It arrived at the Adams Street USPS facility in Tallahassee at 1:19 p.m., on August 11. However, the package had been improperly “coded” in the Tampa USPS facility to zip code 32301, rather than to zip code 32399. The 32399 zip code is used for state agencies in Tallahassee. This mis-code by the Tampa office caused the package to be erroneously sent from the Adams Street office to the downtown Tallahassee facility, rather than being processed for a “state agency” delivery. Thereafter, it went to another USPS site, the Lake Jackson facility, where it arrived on August 12. The package did not make it back to the Adams Street facility where it belonged until 5:36 a.m. on August 16-–one day after the submission deadline. The application was delivered to DACS on August 17, 2016, at 9:08 a.m., two days after the deadline. Clearly, Florida Power’s application for a Tax Credit was not timely received by the Office of Energy. However, Florida Power raises several facts which may relate to whether equitable tolling or equitable estoppel principles apply to this situation. Florida Power points out that verbiage on the face of the application itself does not specifically use the words “overnight express” as a means of submitting the application. Florida Power maintains, therefore, that it was misled into believing that physical hand-delivery or certified mail were its only options. Inasmuch as Florida Power had submitted their prior year’s application via FedEx, their claim lacks credence. Furthermore, the rule addressing application submission defines “hand delivery” as “any physical submission of an application to the Office [of Energy] from a representative of an applicant, courier, or a private delivery service.” Fla. Admin. Code R. 5O-2.003(3)(b)2. Florida Power was very familiar with the Tax Credit program, but could not say why it was not familiar with the rules governing that program. Unfortunately, certified mail, Florida Power’s delivery option for the application at issue, does not guarantee delivery by a date certain. Rather, certified mail-–which is processed exactly the same way as non-certified mail-–is merely a means for tracking a letter or package. Thus, a person who mails a letter by way of certified mail assumes the risk that the letter may not be delivered on or before a desired date. It appears that the risk is quite high. A USPS employee testified at final hearing that there are 50 to 70 complaints per day in Tallahassee concerning certified mail and several hundred certified letters may be misdirected each week. Florida Power further argues that the Department has seen several applications submitted via certified mail arrive at DACS late, i.e., after the “received by” deadline. Florida Power asserts that this fact has put DACS on notice that allowing an applicant to submit an application via certified mail constitutes a flaw in the system. The Department maintains that the use of certified mail is a valid way of tracking applications and is feasible. During the development of the rule governing submissions of the applications, no interested party voiced any objection to the use of certified mail as a delivery option. There is no evidence in the record that DACS was previously aware of the magnitude of errors by USPS so that it (DACS) should not include certified mail as an option for submitting applications. One must wonder, as does Florida Power, why there needs to be tracking of the applications at all since the operative date is the date of receipt by DACS. But the Department must deem it necessary for some reason and it is the current state of the law. Florida Power contends in its PRO that there are numerous fallacies in the Department’s rule regulating Tax Credit applications. This proceeding, however, is not a rule challenge brought pursuant to section 120.56, Florida Statutes. The validity or propriety of the rule is not in question. At issue in the instant proceeding is whether Florida Power complied with the duly promulgated and existing rule. DACS is one of the few state agencies which await delivery of its mail from the post office, rather than sending someone to retrieve it from USPS. DOAH is also one of those agencies. While awaiting delivery may delay an agency’s receipt of mail at times, it would not have affected Florida Power in this case because the package was not available for pick-up until August 16, one day after the deadline. There is no requirement in law or rule that any state agency opt to pick up its mail from USPS rather than have it delivered. Florida Power’s lament that DACS could have chosen to have its mail delivered is of no consequence. Some government agencies use the postmark on letters or packages as evidence that the item was timely mailed out; think IRS and April 15, for example. However, the DACS rule requires receipt of the application by the Department; the rule does not currently employ a “submitted by” compliance date. See Fla. Admin. Code R. 5O-2.003(b). When the Tax Credit program was originally initiated, the Department undertook regular rule development. The first rule promulgated by the Department was drafted in July 2012 and was ultimately adopted in the spring of 2013. That version of the rule stated that all applications must be “submitted” by a date certain. Upon receipt of one application after the due date, but which had been “submitted” by the applicant before the deadline, the Department decided it needed to re-think that provision. Rulemaking was recommended in order to amend the language relating to timely filing of applications. During the rulemaking process, which was duly noticed and advertised, DACS received no input from interested parties concerning the proposed amendment to the rule. The amended rule requires applications to be “received by” DACS on or before the deadline established by rule. This amendment eliminated any disputes concerning when an application was “submitted” by an applicant. The current, duly promulgated rule utilizes “received by” rather than “submitted” as the operative date. Florida Power points out that DACS has missed some of its own statutorily mandated deadlines concerning the reporting of Tax Credit information to the governor’s office. Florida Power does not cite to any authority which relieves an applicant from the requirements of a rule when an agency misses its own deadlines. So, that DACS was not timely in carrying out its own mandated duties is irrelevant to whether Florida Power satisfied its required actions. Nonetheless, the Department provided a legitimate rationale for its tardiness, though such reasons are irrelevant to the issue in this case. DACS employees utilize a checklist when reviewing Tax Credit applications. The checklist is just that, a matrix that can be checked off as each element or requirement of the application is reviewed, i.e., date of receipt, signature, application form, etc. The first question on the checklist asks whether the application “was submitted by” the requisite due date. April Groover Combs, who reviewed the Florida Power application using the checklist, simply interpreted the “was submitted by” language as “was received by.” Mrs. Combs had authored the rule and was involved in its amendments, so she understood what was required regardless of how the checklist referred to the items. Florida Power suggests that the internal checklist error somehow invalidates the Department’s actions; it does not. An internal document used by employees is not meant to provide rights to the public. It is not a rule. Thus, any errors within such a document are immaterial.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services upholding its rejection of the Tax Credit application filed by Florida Power as ineligible for consideration. DONE AND ENTERED this 6th day of April, 2017, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 6th day of April, 2017.
Findings Of Fact The Petitioner is a Florida corporation, which is a wholly owned subsidiary of United States Industries, Inc. Center Sand Company and Eustis Sand Sales are divisions of the Petitioner. They are not separately incorporated. Petitioner is in the business of mining and hauling sand. It leases and operates the Center Sand Mine. It makes profits from the sales of sand, and by serving as a broker for individuals who contract with the Petitioner to transport the sand. The Petitioner has one sales tax number. The Petitioner maintains a single price list for its sand. The price list does not include the cost of hauling the sand. Some purchasers send their own trucks to the Petitioner's mine to pick up the sand. Other purchasers transport the sand by common carrier. Approximately seventy-five to eighty percent of the sand is hauled by "lease operators" or "contract carriers". These operators own their own trucks, and contract with the Petitioner to exclusively haul Petitioner's sand. The Petitioner handles payroll, insurance and taxes far the lease operators, and maintains a lease payroll which is based on the tonnage of sand hauled by the lease operator. The Petitioner collects a brokerage commission from the lease operators which ranges from twelve and a half to twenty-seven percent, depending upon whether the operator owns his or her own trailer, or uses one of the Petitioner's trailers. In transactions in which a purchaser utilizes its own carriers, or common carriers, the Petitioner submits a single invoice to the purchaser which reflects the price of the sand. In cases in which the Petitioner's lease operators do the hauling, the Petitioner submits two invoices to the purchaser. One invoice reflects the price of the sand. The other reflects the freight charges of the contract operator. Some purchasers satisfy the two invoices with a single check, others issue two checks. Whether one or two checks are submitted, the Petitioner maintains separate receipt books for sand and for freight. Invoices, whether for sand or freight, are generally issued in the name of Center Sand Company or Eustis Sand Sales. The Petitioner collects sales taxes from its customers for sales of sand. The Petitioner does not collect sales tax on freight charges. The Petitioner and the Department submitted copies of numerous purchase orders, and invoices into evidence. Invoices reflecting all of the transactions involved in the audit were not submitted. Some of the purchase orders and/or invoices reflect that the sales are "f.o.b. origin". F.o.b. literally means "free on board" and refers to the location at which title to goods being bold transfers from the seller to the purchaser. Other purchase orders and/or invoices reflect that the sales are f.o.b the purchaser's place of business. Most of the Petitioner's sales are arranged by telephone conversations with no written purchase order. In these transactions, and even in most transactions in which there are purchase orders, neither the purchase order nor the Petitioner's invoices reflect whether the terms of the transaction are f.o.b. origin or f.o.b. purchaser's place of business. The evidence is undisputed that in these transactions in which the documents do not reflect the precise terms of the transaction, the Petitioner and its customers have treated the sales as if they were f.o.b. origin. In other words, they treated the transactions as if ownership of the sand transferred at the Petitioner's mine. This is generally the practice in the Petitioner's industry, and is consistent with the Petitioner's price quotation and billing practices. The Petitioner has conducted its business in this manner, and collected sales taxes only on the price of the sand for many years. The Petitioner was audited by the Department in 1973, and was assessed for numerous items. It was not assessed for sales taxes on freight. Loads of sand are occasionally lost between the Petitioner's mine and the purchaser's place of business due to an accident or other cause. Generally when this occurs the Petitioner replaces the load of sand. This policy does not reflect that title to the sand has not yet transferred to the purchaser. The cost of a load of sand is somewhat negligible, generally less than twenty dollars, and the Petitioner is willing to replace a load in order to maintain good will with its customers. The Department's audit and proposed assessment covers the period from June 1, 1975 through May 31, 1978. The total amount of the proposed assessment is $12,933.98. Of this amount, $2,213.12 is listed in "Schedule B" of the proposed assessment. The Petitioner does not contest this portion of the assessment. The amount of allegedly due taxes set out in Schedule A of the proposed assessment is $8,853.02. The Department contends that the Petitioner should have collected sales taxes on its freight charges, and $7,133.00 of the Schedule A taxes relate to the disputed freight items. The Petitioner does not dispute the remainder of the taxes set out in Schedule A, $1,720.02, or penalties and interest on that amount. The Petitioner does contend that it is not liable for taxes on the freight charges.
Findings Of Fact The facts reveal that Jose Gonzalez, a driver for the Respondent, operating one of Respondent's tractor/trailer pieces of Respondent, went to a rock company located in Hollywood, Florida, on February 13, 1978, for the purpose of picking up a load of "P" rock. This rock was purchased from Miramar Lakes, d/b/a Miramar Rock on that date and the driver, Gonzalez, was given a weight ticket. The weight ticket from Miramar Rock reflected a gross weight of 72,360 pounds, which is the total of the equipment and load. (The scales at Miramar peck used to weigh the Respondent's equipment and load had been certified by the Petitioner to be accurate on June 7, 1977, and again on April 11, 1978.) The weather on February 13, 1978, was clear and the purchase, loading and weighing done on the subject equipment was without incident, until the driver attempted to pull away from the weight scales. At that moment the universal joint and yoke snapped and this caused the vehicle to be inoperable. Gonzalez left the truck at the Miramar Rock Company. At that point, the load was covered by a canvas and the trailer was not seeping or leaking water from the rock aggregate. Later, on February 13, 1978, a mechanic employed by the Respondent came to effect repairs to the vehicle, but due to the unavailability of certain parts necessary to complete the repairs, did not finish the work until February 14, 1978. When the repairs had been completed on that date, the driver, Gonzalez, removed the truck from the Miramar Rock compound and entered the roads of Broward County, Florida. At around 9:15 a.m. on February 14, 1978, Gonzalez arrived at the intersection of Hollywood Boulevard and Flamingo Road in Broward County, Florida, eastbound on Hollywood Boulevard. At that intersection, officers employed by the Florida Highway Patrol, Weights Division, intercepted the Des Rocher truck and caused the vehicle to stop. After the stop the equipment being operated at that time was established to be a vehicle measuring between 37 feet to 38 feet from the front axle to the rear axle, and the peak of the rock load was located in the center rear portion of the trailer. Officer Wilkerson of the Florida Highway Patrol observed water dripping out of the rear tailgate after making the stop. Gonzalez was asked to produce a weight ticket and in response to this request produced the weight ticket given him by Miramar Rock on February 13, 1978. Officer Wilkerson commented that this ticket was from the day before and that a ticket bearing the current date was required. Gonzalez was then told that the truck would be weighed with the method for weighing the truck being by two portable scales. Officer Wilkerson weighed one side of the truck and Officer Herron went to the other side of the truck. Wilkerson weighed the steering axle on his side of the truck; the drive axle on his side of the truck, and two tires on the rear tandem axles on his side of the truck. It is not known what Officer Herron did, if anything, in effecting the purposes of this inspection and weigh-in, because Officer Herron did not appear at the hearing in this cause and was not seen by Officer Wilkerson in conducting his inspection activities, if any. Therefore, the total weight of the truck as ascertained from the inspection ostensibly conducted by these officers was not shown by competent evidence. However, it was demonstrated through the testimony in this hearing that the plan which the officers had for making the roadside inspections was one which called for basically stopping all trucks of the category of aggregate haulers that were eastbound through the intersection on Hollywood Boulevard, to the exclusion of pickup trucks and moving vans. After stopping the former category of trucks, some were weighed and others were not. As a result of the stop, Gonzalez was ticketed for a weight violation and that ticket was in the amount of $136.45 as an assessed penalty. Gonzalez then took the truck back to the Des Rocher installation which contained a set of scales and between 10:15 a.m. and 10:30 a.m. the truck was weighed and shown to be 35.64 tons, or 71,280 pounds as the gross weight including the equipment and load. (The scales that were utilized had been certified by the Petitioner on June 7, 1977, and again on May 8, 1978.)
Findings Of Fact The Petitioner was acquired by Mr. Farish in November 1985. The Petitioner is a Georgia corporation. In December 1985, the Petitioner bid on a federal contract to provide fuel to federal installations in the southeastern United States. The Petitioner was awarded a contract to provide fuel oil for off-road use at Patrick Air Force Base, which is located in Florida. The Petitioner requested an application from the Department of Revenue for a special fuel license. The Petitioner was sent a motor fuel license application instead of a special fuel license application. The Petitioner filed the motor fuel license application with the Department of Revenue. The Petitioner subsequently filed a special fuel license application. It was received and validated by the Department of Revenue on June 24, 1986. The Petitioner was informed on July 9, 1986, that in order to receive the license, the Petitioner needed to file a copy of a certification to do business in Florida, which could be obtained from the Secretary of State's office. On or about January 9, 1987, the Petitioner forwarded to the Department of Revenue the certification from the Secretary of State's office needed to complete the Petitioner's license application. The Petitioner's special fuel license was issued and became effective January 9, 1987. The Petitioner began purchasing and selling special fuel in Florida on or about April 1, 1986. Between April 1, 1986 and January 9, 1987, the Petitioner paid $7,995.86 in Florida fuel tax liability for purchases of special fuel in Florida. On or about February 25, 1987, the Petitioner filed an application for special fuel tax refund in the amount of $7,995.86. The Respondent denied the tax refund application filed by the Petitioner by Order dated March 18, 1987.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order denying the Petitioner's application for refund be issued by the Respondent. DONE and ENTERED this 18th day of August, 1987, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August 1989. APPENDIX TO RECOMMENDED ORDER CASE No. 87-1641 Only the Respondent filed a proposed Recommended Order containing proposed findings of fact. The Respondent failed to number its proposed findings of fact. The Respondent has, however, only proposed essentially 3 proposed findings of fact: that the Respondent denied the Petitioner's claim for refund and the justification therefore, the Petitioner made four admissions and the Petitioner is a Georgia corporation. The Respondent's first proposed finding of fact has been accepted in paragraph 12, the second proposed finding of fact has been accepted in paragraphs 6-8 and the third proposed finding of fact has been accepted in paragraph 1. COPIES FURNISHED: Honorable Gerald Lewis, Comptroller Department of Banking and Finance The Capitol Tallahassee, Florida 32399-0305 James E. Farish, Jr. President Lincoln Oil Co., Inc. Post Office Box 2904 Gainesville, Georgia 30503-0294 Edwin A. Bayo, Esquire Assistant Attorney General Department of Legal Affairs Tax Section The Capitol Tallahassee, Florida 32399-1050
