Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Conditional Site Approval Order No. 82-49 was issued in accordance with Section 330.30, Florida Statutes, and Chapter 14-60, Florida Administrative Code, and that it is affirmed. THIS RECOMMENDED ORDER entered this 17th day of July, 1984, in Tallahassee, Florida. WILLIAM B. THOMAS 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 17th day of July, 1984. COPIES FURNISHED: Mary M. Callaway, Esquire Post Office Box 3697 Pensacola, Florida 32516 T. Sol Johnson, Esquire Johnson, Green & Westmoreland, P.A. P. O. Box 605 Milton, Florida 32570 Vernon L. Whittier, Jr., Esquire Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32301-8064
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by the Honorable Robert S. Cohen, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Respondent’s Motion to Dismiss and Relinquish Jurisdiction, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to Sky Powersports North Orlando, LLC to sell Slingshot Motorcycles manufactured by Polaris Industries, Inc. (SLNG) at 855 North US Highway 17-92, Longwood (Seminole Count), Florida 32750. Filed February 13, 2015 4:10 PM Division of Administrative Hearings DONE AND ORDERED this (3 County, Florida. Filed in the official records of the Division of Motorist Services this 13 _ day of February, 2015. Moke: Ur Nalini Vinayak, Dealer License Administrator Copies furnished to: Nalini Vinayak Dealer License Section Nicholas A. Bader, Esquire Bass Sox Mercer, P.A. 2822 Remington Green Circle Tallahassee, Florida 32308 Michael W. Malone Polaris Sales and Service, Inc. 2100 Highway 55 Medina, Minnesota 55340 Robert S. Cohen Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 day of February, 2015, in Tallahassee, Leon Cobuv Julie Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 e Charles R. Northey Sky Powersports North Orlando, LLC 246 McLean Point Winter Haven, Florida 33884 Nathan D. Stickney Sky Powersports North Orlando, LLC 709 Elkhorn Fern Lane Deland, Florida 32720 Jonathan Breenen Butler, Esquire Akerman, LLP 777 South Flagler Drive Suite 1100, West Tower West Palm Beach, Florida 33401 NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS CYCLE SPORT CENTER, INC., d/b/a CYCLE SPORTS CENTER, Petitioner, vs. Case No. 14-6038 POLARIS SALES AND SERVICE, INC., AND SKY POWERSPORTS NORTH ORLANDO, LLC, Respondents. ORDER CLOSING FILE AND RELINQUISHING JURISDICTION This cause having come before the undersigned on Respondent’s Motion to Dismiss and to Relinquish Jurisdiction, filed on January 23, 2015, and Petitioner’s Notice of No Objection to Respondent’s Motion to Dismiss, filed on February 5, 2015, and the undersigned being fully advised in the premises, it is, therefore, ORDERED that: 1. Respondent’s Motion to Dismiss and to Relinquish Jurisdiction is granted. 2. The final hearing scheduled for September 8 through 11, 2015, is canceled. 3. The file of the Division of Administrative Hearings is closed. Jurisdiction is relinquished to the Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles. DONE AND ORDERED this 6th day of February, 2015, in Tallahassee, Leon County, Florida. ROBERT S. COHEN 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 February, 2015. COPIES FURNISHED: Jennifer Clark, Agency Clerk Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-430 2900 Apalachee Parkway, MS 61 Tallahassee, Florida 32399 (eServed) William Edward Van Cott Government Operations Consultant Office of the General Counsel Department of Highway Safety and Motor Vehicles 2900 Apalachee Parkway, Room A-430 Tallahassee, Florida 32399 (eServed) Nicholas A. Bader, Esquire Bass Sox Mercer, P.A. 2822 Remington Green Circle Tallahassee, Florida 32308 (eServed) Michael W. Malone Polaris Sales and Service, Inc. 2100 Highway 55 Medina, Minnesota 55340-9770 Charles R. Northey Sky Powersports North Orlando, LLC 246 McLean Point Winter Haven, Florida 33884 Nathan D. Stickney Sky Powersports North Orlando, LLC 709 Elkhorn Fern Lane Deland, Florida 32720 Jonathan Brennen Butler, Esquire Akerman, LLP Suite 1100 West Tower 777 South Flagler Drive West Palm Beach, Florida 33401 (eServed) STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS CYCLE SPORT CENTER, INC., d/b/a CYCLE SPORT CENTER, CASE NO.: 14-6038 Petitioner, vs. POLARIS SALES AND SERVICE, INC., AND BROWARD SKY POWERSPORTS NORTH ORLANDO, LLC, Respondents, / RESPONDENT'S MOTION TO DISMISS AND TO DICTION Respondent, POLARIS SALES AND SERVICE, INC. ("Polaris"), by and through their undersigned counsel and pursuant to Sections 120.569, 320.642 and 320.642, Florida Statutes, and Florida Administrative Code Rule 28-106.204, respectfully move for entry of an Order dismissing the Petition initiating this proceeding and relinquishing the Division of Administrative Hearings' jurisdiction over this proceeding. As grounds, Polaris states as follows. 1 This proceeding was initiated by the Petition Protesting Establishment of Dealership Pursuant to Florida Statutes Section 320.642 ("the Petition") filed by Petitioner CYCLE SPORT CENTER, INC., d/b/a CYCLE SPORT CENTER (‘Cycle Sport"). In relevant part, Cycle Sport is protesting Polaris’ Notice of Intent to establish Sky Powersports North Orlando, LLC ("Sky") as an additional dealer for the sale of Polaris' line of Slingshot motorcycles at 855 North U.S. Highway 17-92, Longwood, Florida ("the Notice of Intent"). 2. On January 15, 2015, however, Polaris filed formal notice of withdraw of the Notice of Intent with the Florida Division of Motor Vehicles, whereby Polaris withdrew its request that Sky be authorized as an additional dealer of the Slingshot line. A copy of Polaris Notice of Withdraw is attached as Exhibit A. 3. As a consequence of Polaris' withdraw of its Notice of Intent, there is no longer any basis or need for an administrative hearing on Cycle Sport's Petition protesting the Notice of Intent, Rather, Cycle Sport's Petition is now moot as there are no substantial interests or rights of the parties to be adjudicated nor any disputed facts to be determined. 4. Polaris accordingly requests that the Division of Administrative Hearings dismiss this proceeding and relinquish jurisdiction of this matter to the Division of Motor Vehicles. Respectfully submitted, !s/ Jonathan B. Butler Jonathan B. Butler, Esq. Florida Bar No. 56197 Akerman LLP 777 South Flagler Drive, Suite 1100 West West Palm Beach, FL 33401 Office: (561) 671-3642 Fax: (561) 659-6313 E-mail: jonathan. butler@akerman.com Secondary e-mail: luke.bovat@akerman.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that on January 23, 2015, I electronically filed the foregoing document with the Division of Administrative Hearings via eALJ, and served the foregoing documents via U.S. Mail and email on Robert C. Byerts, Esq. and Nicholas Bader, Esq., Bass, Sox and Mercer, 2822 Remington Green Cir, Tallahassee, FL 32308. /s/ Jonathan B. Butler Jonathan B. Butler, Esq. Florida Bar No. 56197 G— PSLaARIs “~~ SALES inc. Polaris Sales Inc, 2100 Highway 55 Medina, MN 55340-9770 763-542-0500 763-847-8149 fax January 15, 2015 Nalini Vinayak, Administrator Dealer License Section Division of Motor Vehicles 2800 Apalachee Parkway Room A-312, MS-65 ; Tallahassee, FL 32399-0635 Dear Nalini Vinayak, On October 30, 2014, Polaris Sales Inc. provided the Florida Division of Motor Vehicles with notice that It intended to authorized Sky Powersports North Orlando, LLC., d/b/a Sky Powersports North Orlando as a dealership for the sale of Slingshot at 855 North Highway 17-92, Longwood, FL, 32750. Polaris hereby formally withdraws that notice of intent to authorize. Please acknowledge receipt of this letter and notice of withdrawal, Should you require any additional Information, please contact Peggy Payne at 763-847-8403. Sincerely, % ee ¥ UMICHAUL ULE bus Michael W. Malone ~ { VP Finance, CFO
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, R. Jane Frazier, has filed a claim against the bond in the amount of $813.00 alleging that Passport failed to perform on certain contracted services. On June 4, 1990, petitioner purchased a travel certificate from Jet Set Travel, a Maryland telemarketeer authorized to sell travel certificates on behalf of Passport. The certificate entitled the holder to fourteen nights' accommodations in Hawaii plus roundtrip airfare for two persons, with all travel arrangements to be made by Passport. The certificate carried the name, address and logo of Passport. During petitioner's dealings with Passport's agent, it was represented to her that for $89.00 per night, she would receive a two bedroom, oceanfront condominium. This constituted a misrepresentation on the part of the agent since the rooms were actually more expensive. Relying on that representation, petitioner authorized a $328.00 charge on her credit card payable to Jet Set Travel to be used as a credit on services purchased in Hawaii. She also paid a $50.00 refundable deposit to Passport. In August 1990, petitioner contacted Passport regarding travel dates and was told the charge on her room would be $124.00 per night, and not $89.00 per night as promised by Jet Set Travel. In charging this amount, Passport relied upon its brochure which priced the accommodations in the range of $89.00 to $124.00 per night, with the highest price for the type of room selected by petitioner. Fearing that she would lose her $328.00 fee and $50.00 deposit if she did not pay the higher amount, petitioner reluctantly agreed to send a cashier's check in the amount of $1,406.00 to Passport, which represented fourteen nights' lodging at $124.00 per night. Finally, before she departed on the trip, petitioner was required to pay another $25.00 miscellaneous fee to Passport, the basis for which was never explained. When petitioner arrived in Hawaii on October 11, 1990, she discovered that her assigned accommodations for the first week at the Kona Reef were unavailable because Passport had failed to make a reservation. Accordingly, she was forced to purchase five nights accommodations at the Kona Reef for $524.02 plus two nights at another facility for $248.00. The accommodations for the second week were satisfactory. After petitioner brought this matter to the attention of Passport, she acknowledged that she received a refund check for the first seven nights' stay, although she says she can't remember if it was for all or part of her out-of- pocket costs. Passport's contention that its books reflect an entry that she was paid for the entire amount was not contradicted although neither party had a cancelled check to verify the actual amount of the payment. Passport's testimony is accepted as being the more credible on this issue. Because petitioner relied on a misrepresentation by Passport's agent as to the type and price of accommodations being offered, she is entitled to be reimbursed her $50.00 refundable deposit (which was never returned), the $25.00 miscellaneous fee paid on September 26, 1990, for which no justification was shown, and the difference between the originally agreed on price ($89.00 per night) and the actual price ($124.00) for the last seven nights accommodations, or $245.00. Accordingly, she is entitled to be paid $320.00 from the bond.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted, and he be paid $320.00 from the bond. DONE AND ENTERED this 13th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER 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 13th day of December, 1994. COPIES FURNISHED: R. Jane Frazier 3070 Meadow Lane Mobile, Alabama 36618-4634 Michael J. Panaggio 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue Whether certain statements contained within a Voluntary Compliance Agreement (Airbnb Agreement), entered into between Respondent, Department of Revenue (Department), and Airbnb, Inc., constitute an unadopted rule, in violation of sections 120.52(2), 120.54, and 120.56(4), Florida Statutes (2018).
Findings Of Fact THE PARTIES AAHOA is a nationwide trade association that represents the hotel industry. According to Ms. Humphrey, AAHOA members own approximately 60 percent of all hotels in the United States. Ms. Humphrey characterized AAHOA as “the voice of American hotel owners[.]” Ms. Humphrey testified that AAHOA’s Florida members constitute its third largest membership, by volume, of all its members per state. Ms. Humphrey further testified that most of AAHOA’s members are active hoteliers, actively engaged in the ownership and operations of their properties. The undersigned has reviewed AAHOA’s membership list as it pertains to Florida members, which the undersigned accepted as an exhibit in this proceeding, subject to the Stipulated Protective Order. Broadly speaking, this membership list indicates a large membership, with individual members (and spouses) listing various “organizations,” many of which appear to be recognized hotel names, as part of their memberships. Ms. Humphrey testified that its members own hotels in a variety of forms: sole proprietorships; joint ventures; partnerships; and various corporate forms, including limited liability companies. When pressed at the final hearing during cross-examination, Ms. Humphrey was unable to identify whether any of the individuals or entities listed in the Florida membership list owned a hotel in Florida. The Department is the state agency responsible for administering Florida’s revenue laws. TRANSIENT RENTAL TAX Among its many duties, the Department is responsible for imposing and collecting Florida’s transient rentals tax (TRT), a type of tax imposed on short-term accommodations rentals. See §§ 20.21, 212.03, and 213.05, Fla. Stat. Section 212.03(1)(a) provides the general basis for TRT: It is hereby declared to be the legislative intent that every person is exercising a taxable privilege in the business of renting, leasing, letting, or granting a license to use any living quarters or sleeping or housekeeping accommodations in, from, or a part of, or in connection with any hotel, apartment house, roominghouse, tourist or trailer camp, mobile home park, recreational vehicle park, condominium, or timeshare resort. . . . For the exercise of such taxable privilege, a tax is hereby levied in an amount equal to 6 percent of and on the total rental charged for such living quarters or sleeping or housekeeping accommodations by the person charging or collecting the rental. Such tax shall apply to hotels, apartment houses, roominghouses, tourist or trailer camps, mobile home parks, recreational vehicle parks, condominiums, or timeshare resorts, whether or not these facilities have dining rooms, cafes, or other places where meals or lunches are sold or served to guests. Section 212.03(2) provides the procedure for the collection of TRT: [TRT] shall be in addition to the total amount of the rental, shall be charged by the lessor or person receiving the rent in and by said rental agreement to the lessee or person paying the rental, and shall be due and payable at the time of the receipt of such rental payment by the lessor or person, as defined in this chapter, who receives said rental or payment. The owner, lessor, or person receiving the rent shall remit the tax to the department at the times and in the manner hereinafter provided for dealers to remit taxes under this chapter. The same duties imposed by this chapter upon dealers in tangible personal property respecting the collection and remission of [TRT]; the making of returns; the keeping of books, records, and accounts; and the compliance with the rules and regulations of the department in the administration of this chapter shall apply to and be binding upon all persons who manage or operate hotels, apartment houses, roominghouses, tourist and trailer camps, and the rental of condominium units, and to all persons who collect or receive such rents on behalf of such owner or lessor taxable under this chapter. Also included in the Department’s responsibilities is its obligation to identify the person who has a duty to register as a “dealer” for the purpose of collecting and remitting TRT. See § 212.18(3)(c)2.b., Fla. Stat. The term “dealer,” in the context of the issues raised in this unadopted rule challenge, means: [A]ny person who leases, or grants a license to use, occupy, or enter upon, living quarters, sleeping or housekeeping accommodations in hotels, apartment houses, roominghouses, tourist or trailer camps, real property, space or spaces in parking lots or garages for motor vehicles, docking or storage space or spaces for boats in boat docks or marinas, or tie-down or storage space or spaces for aircraft at airports. The term “dealer” also means any person who has leased, occupied, or used or was entitled to use any living quarters, sleeping or housekeeping accommodations in hotels, apartment houses, roominghouses, tourist or trailer camps, real property, space or spaces in parking lots or garages for motor vehicles or docking or storage space or spaces for boats in docks or marinas, or who has purchased communications services or electric power or energy, and who cannot prove that the tax levied by this chapter has been paid to the vendor or lessor on any such transactions. § 212.06(2)(j), Fla. Stat. Florida law provides that all dealers must register with the Department. § 212.18(3)(a), Fla. Stat. Florida Administrative Code Rule 12A-1.060(1)(a)9. further defines who must register as a “dealer”: Persons required to register as dealers. (a) Every person desiring to engage in or conduct any one of the following businesses in this state as a “dealer” must register with the Department of Revenue and obtain a separate certificate of registration for each place of business: * * * 9. Lease, let, rental, or granting licenses to use any living quarters or sleeping or housekeeping accommodations subject to the transient rental tax imposed under Section 212.03, F.S. All dealers must remit all TRT collected to the Department. “Any person who . . . fails to remit taxes collected under this chapter is guilty of theft of state funds.” § 212.15(2), Fla. Stat. The undersigned finds that, under the above-described statutory and regulatory structure, hotels are considered “dealers” that must register with the Department and collect and remit TRT to the Department. THE AIRBNB AGREEMENT Airbnb is an internet-based platform, through which a third party desiring to offer accommodations (hosts), and a third party desiring to book an accommodation (guests), have the opportunity to communicate, negotiate, and consummate a booking transaction for accommodations pursuant to a direct agreement, in which Airbnb is not a direct party. Airbnb utilizes third-party payment processors to provide a secure payment processing service, which allows hosts to receive payments from guests electronically. When the host accepts and confirms a guest’s reservation request, Airbnb, acting through third-party payment processors, electronically processes the guest’s payment, which is typically held for approximately 24 hours after the guest checks into the host’s property, and then is released directly to the host, less an applicable service fee. The Department and Airbnb entered into the Airbnb Agreement on December 1, 2015. The Airbnb Agreement states that the parties entered into the Airbnb Agreement: [T]o facilitate the reporting, collection and remittance of the Transient Rental Tax imposed by Florida Statute § 212.03; the Discretionary Sales Surtax imposed pursuant to Florida Statute 212.054; and the Tourist Development Tax imposed by Florida Statute § 125.0104 by those counties that have not adopted an ordinance providing for the self- collection and administration of their respective Tourist Development Tax pursuant to Florida Statute § 125.0140(10) (hereinafter collectively, “TRT”), resulting from Rental Transactions completed by Hosts and Guests on the Platform for the occupancy of accommodations located in the State of Florida (the “State”)[.]” The Department also considered the following factors when entering into the Airbnb Agreement, consistent with section 213.21(7)(b), which provide the Department with the authority to settle and compromise tax due under voluntary self- disclosure, and when the Department is able to determine that a settlement and compromise is in the best interests of the state: Its legal authority to designate “dealers” for purposes of registration, collection, and remittance of state taxes and the provisions of rule 12A-1.061(9); The difficulty of identifying persons who may be attempting to engage in a transient rental, particularly those exclusively utilizing a third-party platform; The “significant” administrative burden of identifying, registering, tracking, accounting for, and processing returns and payments from a significant number of individual “hosts” utilizing the Airbnb platform, while designating Airbnb as a “dealer” would be more efficient; The difficulty it would encounter in enforcing and collecting from the individual “hosts.” The Department stated that it would expend extraordinary resources and time, without guarantee of success, in identifying, auditing, assessing, and collecting from these individual “hosts.” Through designating Airbnb as a “dealer,” collections and the auditing process would be more stable and simplified because Airbnb, as the “dealer,” agreed to be liable for audit by the Department and agreed to provide records sufficient to determine its liability with a much higher degree of confidence than if the Department attempted to identify and audit the individual “hosts”; The Department retained the ability to hold “hosts” liable for any applicable taxes, penalties, and interest, if a “host” were to make material misrepresentations to Airbnb or the Department; The benefits of the Airbnb Agreement’s providing predictability in terms of legal issues that could arise between Airbnb and the Department; and The future voluntary compliance of taxpayers and the best interests of the state. Mr. Hamm confirmed that the Department considered these factors, as enunciated in section 213.21(7)(b), and further testified that the Airbnb Agreement was the result of an “unique” set of circumstances that operates in the best interest of the state. Under the Airbnb Agreement, Airbnb: [A]grees to assume the duties of a TRT “dealer” during the period in which this [Airbnb] Agreement as described in Section 212.03(2) and Section 212.18 of the Florida Statutes with respect to Rental Transactions between Hosts and Guests completed on the Platform for which TRT . . . is applicable. The Airbnb Agreement also provides that Airbnb shall collect and remit TRT for all Florida-based rental transactions that users complete on the Airbnb platform. The Airbnb Agreement provides that the Department agrees to not directly audit guests or hosts, stating: [T]he Department agrees that any audit of [Airbnb]’s Rental Transactions covered by this [Airbnb] Agreement will be based on TRT returns filed with the Department by [Airbnb] and [Airbnb]’s supporting documentation for such returns, and the Department agrees that it will not directly or indirectly audit Guests or Hosts for such Rental Transactions that are transacted through the Platform. The Airbnb Agreement also states that, with respect to a host’s activities on the Airbnb platform, the Department will not require the host to individually register with the Department to collect, remit, and report TRT to the Department under section 212.18.7/ AAHOA’S UNADOPTED RULE CHALLENGE AAHOA’s Petition alleges that the Airbnb Agreement constitutes an unadopted rule because it was not adopted pursuant to the requisite procedures identified in section 120.54. AAHOA contends that the Airbnb Agreement provides broad rights and statutory waivers to hosts that are not available to hoteliers in Florida, which comprise its membership ranks. AAHOA alleges that the Airbnb Agreement substantially affects its members because Florida law requires its members to register, collect, and remit TRT, to register as dealers with the Department for each place of business, and to subject themselves to Department audit; conversely, they contend that the Airbnb Agreement waives these same legal requirements for hosts that use the Airbnb platform. According to AAHOA, with the Airbnb Agreement in effect, its Florida members must incur regulatory costs and burdens that hosts under the Airbnb platform—who are direct competitors to AAHOA’s Florida members—do not. Ms. Humphrey testified that AAHOA “is the voice of American hotel owners . . . and our members as hoteliers always have an interest in making sure that there’s a level playing field among businesses that operate in the same space.” Ms. Humphrey further commented on how the Airbnb Agreement affects AAHOA’s Florida members: Any time a hotelier is required to register or collect, remit, and be subject to audit, there are inherent labor costs involved with that. There are daily, weekly, monthly and annual reconciliations that need to take place. Any time employees are tasked with activities in furtherance of compliance efforts, that’s time they’re not spending in other areas to drive revenues, to drive [return on investment]. Additionally, many hoteliers will outsource or have accounting or other third parties who assist with that process. And there’s an actual expense, of course, in hiring any of those. Any time you have labor and expenses in one area, that’s pulling away from the [return on investment]. AAHOA maintains that the expenses it outlined in paragraphs 24 through 27 above, which affect its Florida-based hotel-owning members’ return on investment, cause it injury, when compared to an Airbnb host which, under the Airbnb Agreement, will not incur such expenses. However, the undersigned finds that AAHOA was unable to identify with any level of specificity, or to quantify any damages suffered or would suffer, or identify negative effects on the return on investment of any of its Florida-based hotel-owning members, as a result of the Airbnb Agreement. The undersigned finds that, regardless of the existence of the Airbnb Agreement, any “dealer” in Florida, including any of AAHOA’s Florida-based hotel-owning members, is required to comply with the applicable laws concerning registering as a dealer, and collecting and remitting TRT. Further, any “dealer” remains subject to a possible audit. AAHOA’s Florida-based hotel-owning members are incurring the regulatory costs it contends negatively affect its return on investment, regardless of the existence of the Airbnb Agreement. The Airbnb Agreement provides that Airbnb collects service fees from guests and hosts, which it calculates as a percentage of the rental transaction amount that hosts set. The Airbnb Agreement also provides that Airbnb will impose TRT on the rental transaction amount, but not these service fees. Thus, the undersigned finds that hosts incur a cost, outside of TRT, that it must pay to Airbnb under the Airbnb Agreement. AAHOA did not establish that any of the individuals or entities listed in its Florida membership list owned a hotel in Florida. Further, the undersigned finds that AAHOA did not establish that a substantial number of its members have a substantial interest that is affected by the Airbnb Agreement. The undersigned finds that AAHOA failed to introduce any evidence to corroborate its claimed injury that the Airbnb Agreement’s requirement that Airbnb collect and remit TRT, as opposed to hosts doing so, or eliminating the need for hosts to register or be subject to audits, caused any harm to any of its members, let alone a substantial number of them. To that end, the undersigned notes that AAHOA failed to identify any Florida-based hotel-owning member who specifically identified the Airbnb Agreement as affecting that member’s return on investment for any hotel property. Additionally, AAHOA failed to introduce any evidence that would demonstrate that the Airbnb Agreement has affected the economic performance of its Florida-based hotels in any way. Although AAHOA has consistently stated that “basic logic” establishes that the Airbnb Agreement affects a substantial number of its members, the undersigned finds that AAHOA simply fell short of establishing this important fact. The undersigned finds that AAHOA has not presented any competent substantial evidence to demonstrate that a substantial number of its members are affected by the Airbnb Agreement’s requirement that Airbnb, and not hosts, register, collect, and remit TRT, and be subject to audit for those transactions effected on its platform. Accordingly, the undersigned finds that AAHOA’s claimed injury—that is, that its Florida-based hotel-owning members are injured because the Airbnb Agreement exempts hosts from certain requirements, thus causing an “unlevel playing field”—is based on speculation.
Findings Of Fact The facts in this case are not in dispute. In October 1978 Herbert Grossman, a CPA, one of whose clients was Red Aircraft, Inc., and Spencer Gordon formed the corporation Southern Air Charter, Inc., for the purpose of taking title to an aircraft to be operated by Red. The bill of sale for $140,000 in September 1978 was from Red to Southern Air Charter, Inc., who financed the plane with a loan from Barnett Bank. Red, at all times here relevant, was registered with the Department of Revenue (DOR or Petitioner) as a dealer engaged in the business of selling tangible personal property. Southern Air Charter submitted application to DOR for a certificate of registration (Exhibit 1) bearing the typed date October 1978 scratched out, and inserted in handwriting 6-1-79. This application (Exhibit 1) was stamped received in DOR office February 1, 1979. Grossman's testimony, which was undisputed, was that Southern was formed as an accommodation to Red for the purpose of taking legal title to the aircraft to improve Red's balance sheet. Red continued to provide insurance coverage on the aircraft, charter the aircraft and perform all of their activities respecting the aircraft that would be done by an owner. Southern, having legal title to the aircraft, took depreciation and investment tax credit while Red used the aircraft. At the time of the sale of the aircraft to Southern, the latter was not a registered dealer, and Red did not collect sales tax on this transaction. On July 7, 1979, the tax, penalty and interest assessed on this transaction was $6,331.68 (Exhibit 2). The accuracy of this figure was not contested, nor was the assessment for rentals of aircraft in the amount of $1,704.34 (Exhibit 2). Red contended that no tax was due on the leasing of the aircraft but no evidence to support this exemption was presented.
Findings Of Fact The applicant for site approval is Downtown Heliport Corporation, Inc., a corporation with headquarters in Orlando, Florida, engaged in operating heliport facilities throughout Florida and other states. Its related company is Bulldog Airlines, which owns and operates helicopters for hire. Robert Uttal is President of both companies. On January 4, 1990, Downtown Heliport Corporation filed its application for site approval by the Department of Transportation (DOT), proposing to establish a .23 acre (10,000 square feet) helicopter pad within the jurisdictional territory of the Canaveral Port Authority. The Port Authority had already approved a land use permit and lease for the applicant on July 19, 1989 and November 14, 1989. The Federal Aviation Authority (FAA) also gave its approval. In a letter dated January 10, 1991, addressed to McDonald Smith, Director of Operations, Downtown Heliport Corporation, the FAA granted approval of the subject heliport under the following conditions: All operations are conducted in VFR weather conditions. The landing area is limited to private use. All approach/departure route helicopter operations are conducted in an area from 090 degrees clockwise to 160 degrees and from 250 degrees clockwise to 330 degrees using the touchdown pad as the center of a compass rose. The takeoff/landing area is appropriately marked. A nonobstructing wind indicator is maintained adjacent to the takeoff/landing area. The approval letter provides, in pertinent part: This determination does not mean FAA approval or disapproval of the physical development involved in the proposal nor is it based on any environmental or land-use compatibility issue. It is a determination with respect to the safe and efficient use of airspace by aircraft and with respect to the safety of persons and property on the ground. In making this determination, the FAA has considered matters such as the effect the proposal would have on existing or planned traffic patterns of neighboring airports or heliports, the effects it would have on the existing airspace structure and projects or programs of the FAA, the effects it would have on the safety of persons and property on the ground, and the effects that existing or proposed man-made objects (on file with the FAA) and known natural objects within the affected area would have on the heliport proposal. The FAA cannot prevent the construction of structures near a heliport. The heliport environs can only be protected through such means as local zoning ordinances or acquisitions of property rights. (DOT Exhibit #4) On January 30, 1990, Bronson Monteith, DOT District Aviation Specialist, inspected the proposed site and found it feasible for the proposed use and consistent with the requirements of DOT Rule Chapter 14-60, F.A.C. More specifically, he reviewed the facility diagram provided by the applicant and determined that the size of the pad, the location of the pad and the air corridor were appropriate. He considered that the Port Canaveral and FAA approval established compliance with ground and air safety standards. He determined from his inspection that existing structures would not interfere with an 8:1 glide slope to and from the pad. Once cleared from the pad the helicopters will use an existing ships' channel as the flight path. Mr. Monteith considered the distance of the streets from the heliport and the objects around it, including trees, the parking area and any major buildings that would be occupied. There are no schools close to the site. A Notice of Intent to issue a site approval for the proposed heliport was issued by the Department and advertised in an area newspaper; notices were sent, as provided in Rule 14-60, F.A.C. John Monteith conducted a public meeting, received comments and submitted a report to the DOT Aviation Bureau in Tallahassee recommending site approval. The heliport application, documentation and comments from the public meeting were reviewed by the Department's Licensing Coordinator and the Aviation Office Manager, and they determined that the application met all requirements under Chapter 330, Florida Statutes, and Chapter 14-60, F.A.C. for site approval. Site approval order no. 91-17 imposes the following conditions: All operations are to be conducted in VFR weather conditions. Operations are limited to private use. There are to be no flights over the City of Cape Canaveral. That the provisions in FAA Airspace Approval letter dated January 10, 1991, be complied with. Traffic patterns and operational procedures are subject to review by this Department prior to licensing or relicensing. (DOT Exhibit #9) Bulldog Airlines and Downtown Heliport Corporation intend to comply with, and enforce the conditions imposed by DOT. The flight path will be at 800 feet elevation along the corridor until the final approach for landing or takeoff, and that final approach will only be over the port itself. It will not include any flights over the Trident nuclear submarine or over storage tanks. The heliport will be private, primarily for the use of Bulldog Airlines, who flies for NASA, for the Port Authority, for various governmental agencies, including environmental monitoring agencies, and for other private hire. The heliport is open only to commercial pilots, will be used during daylight hours and only under conditions which allow for visual, noninstrument flying. Bulldog Airlines commenced operation in 1985 and has never experienced an incident, accident, or any notice of violation from the FAA, DOT or local law enforcement agencies. Because of its safety record it is able to maintain $100 million liability insurance. McDonald Smith, Director of Operations for Bulldog Airlines, is a pilot with approximately 10,000 hours of flight time. He also inspected the site and is aware of existing structures. In his opinion the flight corridor is wide enough to fly a helicopter, even if it is necessary to avoid unforeseen obstacles. Norma Townsend is a resident of the City of Cape Canaveral, approximately one-half mile south of the proposed site. She has attended the series of public meetings which preceded the DOT's proposed decision. She has amassed an impressive array of letters, maps, tapes and other documents related to the proposed site. She describes herself as a citizen and is neither a pilot nor trained in safety. Ms. Townsend is concerned about the existence of the nuclear submarine base, fuel storage tanks and other hazardous materials in the proximity of the proposed site. She feels that no amount of care by the pilots will insure that a helicopter in an emergency might not collide with an existing structure, with disastrous results. She has heard that used parts are sold for new, causing a helicopter to drop from the sky. She believes that ultra-light airplanes, low flying airplanes and weather balloons will provide extraordinary flying hazards in the Port Canaveral area. She suspects that no meaningful study was done by any agency prior to approving the site. Ms. Townsend presented no witnesses to substantiate these concerns and relies on her own common sense. In many instances this would be sufficient, but here the agency and applicant presented knowledgeable, competent expertise in support of a finding that the site is appropriate. Anything is possible, but instances of helicopters dropping out of the sky are virtually unheard of. Pilots are conscious of ultra-light planes and other possible obstacles to flying. Even large birds are a hazard. Heliports are routinely sited near or on top of buildings, in downtown areas or other places where traffic and population are congested. Helicopters are highly maneuverable, and for that reason are relied on in providing transportation and observation in circumstances where planes or ground vehicles are prohibited, for example after a hurricane or after a fire or other calamity. The substantial weight of evidence establishes that the proposed heliport at Port Canaveral can and will be safely operated.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the agency enter its final order finding that site approval order no. 91-17 is valid and appropriate. DONE AND RECOMMENDED this 18th day of December, 1991, in Tallahassee, Leon County, Florida. MARY CLARK 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 18th day of December, 1991. Copies furnished: Robert R. Uttal Downtown Heliport Corporation, Inc. P.O. Box 621148 Orlando, FL 32862-1148 Joy C. Salamone, Mayor City of Cape Canaveral P.O. Box 326 Cape Canaveral, FL 32920 Karen S. Andreas, Commissioner Brevard County Board of County Commissioners 900 E. Merritt Island Cswy. Merritt Island, FL 32952 Vernon L. Whittier, Jr., Esquire Dept. of Transportation 605 Suwannee Street Tallahassee, FL 32399-0450 Norma E. Townsend P.O. Box 883 Cape Canaveral, FL 32920-0883 Ben G. Watts, Secretary Attn: Eleanor F. Turner, M.S. 58 Dept. of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams General Counsel Dept. of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458
Findings Of Fact The Garemore airport is located in Marion County and is known as the Greystone Airport. The Garemores were issued a private airport license for the period September 24, 1980, through September 30, 1981, and have made timely application for annual renewal of this license. Neighboring property owners and residents who objected to grant of the initial license also object to renewal. Generally, their objections concern excessive noise and unsafe aircraft operations. Several Petitioners raise and breed thoroughbred horses on property adjacent to the airport. They fear for their personal safety and the well-being of these horses and other livestock. These Petitioners also contend that aircraft noise and low flying upset their animals and interfere with mating. However, Respondent introduced opposing evidence, and Petitioners' contention was not established as factual. Through unrebutted testimony, Petitioners established that crop dusters routinely originate operations from Greystone Airport, and that crop dusting chemicals are stored on the site. About six months ago, a crop duster taking off from Greystone Airport dumped his chemical load on a Petitioner's property and subsequently crashed on this property. Petitioners also argue that the airport glide slope does not meet accepted criteria and that runway surfacing is inadequate. Respondent DOT has recently inspected the facility and through the testimony of its airport inspector, demonstrated that the glide slope has been measured and meets the 20 to 1 requirement set forth in Section 14-60.07, Florida Administrative Code. The runway is not surfaced and Petitioners contend it is not hard enough for aircraft operations during the rainy season. As evidence of this, they cite an incident where a visiting airplane ground looped on landing and appeared to lose a wheel. This incident did not establish a runway deficiency, however, nor did Petitioners offer evidence that the runway surface fails to meet any statutory or rule standard. Petitioners related numerous examples of low flying, night flying and acrobatic maneuvering at and near the Greystone Airport. They contend that these activities along with the concentration of World War II and antique aircraft, and the crop dusting operations, have made this a commercial facility.
Recommendation From the foregoing, it is RECOMMENDED: That the private airport license issued to James and Geraldine Garemore be renewed subject to a restriction against crop dusting operations. DONE AND ENTERED this 30th day of November, 1981, in Tallahassee, Florida. R. T. CARPENTER, 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 30th day of November, 1981. COPIES FURNISHED: Mrs. Clark Hardwick 900 Northeast 100th Street Ocala, Florida 32677 Charles and Terry Kerr 8149 West Anthony Road, Northeast Ocala, Florida 32670 Mr. John P. Edson 8610 West Anthony Road, Northeast Ocala, Florida 32671 Sherry and Vince Shofner Post Office Box 467 Anthony, Florida 32617 Frank and Carol Constantini 8545 West Anthony Road, Northeast Ocala, Florida 32670 Mr. James B. Banta, Sr. 9349 West Anthony Road, Northeast Ocala, Florida 32670 Ms. Deborah Allen 8263 West Anthony Road, Northeast Ocala, Florida 32671 Mr. Worthy E. Farr, Jr. 8215 West Anthony Road, Northeast Ocala, Florida 32671 Mr. Michael J. Stavola Post Office Box 187 Anthony, Florida 32617 Frances Spain Post Office Box 128 Anthony, Florida 32617 Ms. Beatrice Shepherd Post Office Box 215 Anthony, Florida 32617 J. W. Houston 900 Northeast 100th Street Ocala, Florida 32670 John F. Welch, Esquire Post Office Box 833 Ocala, Florida 32678 Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building, Suite 562 Tallahassee, Florida 32301
The Issue The issue for determination is whether Petitioner has been discriminated against, as he has alleged, and if so, what relief is appropriate.
Findings Of Fact Respondent, F.I.T., is located at the Melbourne airport in Melbourne, Florida. The company provides maintenance support and other general aviation support services for Florida Institute of Technology's flight school. Balazs was hired in August 1987 by Thomas Thompson, Director of Maintenance. His primary duties were the cleaning and washing of aircraft. Thompson left for a 30-day vacation the end of August, and Shop Foreman, John D. Laudenslager, was in charge. Almost immediately, Laudenslager began receiving complaints from female employees regarding Balazs' over-friendly conduct. Laudenslager told Balazs to ignore the females, and when Thompson returned, he was informed of the problem. The complaints were that Balazs would watch the women arrive at work and would jump out from behind the door and scare them. He would also make them uncomfortable by asking about their personal lives. He would also meet them at the gate with exaggerated and unwarranted attention. Thompson spoke to the women involved and confirmed their complaints. On one occasion, Thompson himself observed Balazs at his work station washing an airplane. When a female arrived, Balazs dropped his brush and walked over to the gate. As she walked past him, he turned to face her, staring and leering. Thompson discussed the behavior with Balazs and told him to leave the women alone. Balazs' conduct appeared to improve for a while. His 60 days probationary employment terminated on October 18, 1987. Thompson was reluctant to elevate him to permanent status and to give him the usual merit raise, but by the end of October it appeared that the problem might have been resolved. Balazs received his raise on November 2, 1987. On November 6, 1987, the primary recipient of Balazs' attentions complained again. Virginia Toole has worked at F.I.T. for about nine years, and presently is the senior administrative clerk in charge of records. Balazs started bothering her almost as soon as he started working there. He jumped out from behind the door to scare her, he asked about her boyfriend and asked F.I.T. students about her personal life. When she brought roses she had received from her boyfriend, he told her he could bring bigger and better. Shortly thereafter, a bag of dead roses was found hanging on the gate. After Virginia Toole complained again, John Laudenslager wrote a memo to Balazs reminding him that he had been counselled previously and informing him that further complaints would result in his immediate termination. Balazs was given the memo on November 6th. He was counselled again by Thompson and Laudenslager and was told to avoid all women at work. His response to the memo was peculiarly cavalier. He asked the foreman if he could put the memo on the bulletin board because it was so ridiculous. That evening, after maintenance hours, the company hosted a social gathering to celebrate the dedication of a new building. Balazs attended the gathering and circulated among the females present, showing them the memo and making derisive remarks related to his claim that his accusers were not identified and that the phrase "too familiar and overly friendly" was not defined to his satisfaction in the memo. One female with whom he wittingly or unwittingly shared his comments was Thompson's wife. The next day, a Saturday, Virginia Toole arrived at work just as Balazs was leaving. He followed her to her office, put his arm around her and asked her to meet him at a local lounge for drinks. He also turned to a friend who was with him and said that she was the lady who was going to get him fired. On Monday, November 9, 1987, he was fired. Ms. Toole had reported his behavior again, and his flagrant actions on the evening of November 6th obviously had not escaped the attention of his supervisors. Although he denies leaving the dead roses and putting his arm around Ms. Toole, Balazs admits that he made a point of opening the entrance gate for the women and conversing with them. He denies that his approaches were improper, but admits that he was counselled repeatedly and was told to ignore the women. He also admits that he knew of no instance where females were overly friendly with other females or males and were not disciplined. His behavior, according to Thompson, was unique, but the company would discipline others of either sex if confronted with the same or similar complaints.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that John Balazs' Petition for Relief from an Unlawful Employment Practice be dismissed. DONE and RECOMMENDED this 1st day of May, 1989, in Tallahassee, Florida. MARY CLARK 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 1st day of May, 1989. COPIES FURNISHED: John S. Balazs 2007 Dunbar Avenue Melbourne, FL 32901 Wayne L. Helsby, Esquire 201 South Orange Avenue Barnett Plaza Suite 740 Orlando, FL 32801 Margaret Agerton Clerk of the Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1750 Dana Baird General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1750 Donald A. Griffin Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1750
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: On August 14, 1980, respondent Warwick G. Cahill applied to the Board of Pilot Commissioners for certification to take the examination to become a deputy pilot. To the questions on the application "Have you ever been a party in a criminal proceeding?" and "Have you ever been arrested?," respondent answered "No." On April 16, 1975, respondent was arrested and charged with "driving under the influence" in violation of Section 316.028, Florida Statutes. He was convicted of the misdemeanor charge, his driver's license was suspended for ninety days, he was fined $150.00 and he was placed on probation for six months. Respondent's record shows no prior or subsequent involvement in any criminal or traffic court proceedings. On November 24, 1976, respondent applied for tug employment with the St. Phillip Towing Company. On that application, the following responses were made to the question: "Have you ever been arrested?": Yes, one time, on charges of DWI. On August 4, 1980, Rickie Wayne Baggett applied to the Board of Pilot Commissioners to take the same pilot's examination for which the respondent had applied. To the question, "Have you ever been arrested?," Mr. Baggett answered "Yes," explaining that he had been arrested for driving while intoxicated and his license had been suspended for one year. In the space provided for him to state his driver's license number, Mr. Baggett noted that it had been suspended for one year. At a meeting held on September 5, 1980, the Board of Pilot Commissioners considered the applications of respondent and Mr. Baggett, along with others, to take the October 17, 1980, examination for certificated deputy pilot. The Board unanimously approved a motion to give conditional approval to the applicants Baggett and Cahill pending the receipt of information confirming their maritime background. At a later date, both Baggett and respondent were certified as eligible to take the October 17, 1980 pilot's examination. An investigator with the Department of Professional Regulation who has routinely investigated matters pertaining to licensed pilots since March of 1980 has never been requested to investigate any pilot for a DWI-related offense. The respondent's DWI offense was discovered during an investigation concerning an unrelated matter. While fully aware of the fact that he had been arrested for a driving while intoxicated charge, respondent Cahill claims to have forgotten about the arrest at the time he made application for examination and did not realize that such was a criminal proceeding. Mr. Cahill was born in Australia, came to the United States in 1972 and is a naturalized citizen.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the Administrative Complaint filed on November 9, 1981, as amended on March 16, 1982, be DISMISSED. Respectfully submitted and entered this 21st day of July, 1982, 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 21st day of July, 1982. COPIES FURNISHED: W. B. Ewers, Esquire Suite 204 2170 S. E. 17th Street Ft. Lauderdale, Florida 33316 C. Steven Yerrid, Esquire Holland & Knight Post Office Box 1288 Tampa, Florida 33601 Jane Raker, Executive Director Board of Pilot Commissioners 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Pursuant to Chapter 212, Florida Statutes, the Respondent entered a sales tax assessment in the amount of one thousand four hundred sixty-one and eighty-two one hundredths dollars ($1,461.82) against the Petitioner. In support thereof, Respondent takes the position that payments of $300.00 per charter hour of flying time by the Petitioner to owners of aircraft in order that Petitioner may use said aircraft to provide charter services to third parties are payments for the rental of tangible personal property and therefore subject to a sales tax pursuant to Chapter 212, Florida Statutes. Petitioner on the other hand, takes the position that it is the agent of the owners of the aircraft and as such, provides services which are exempt from taxation pursuant to Department of Revenue Rule 12A-1.71(8), Florida Administrative Code. Mr. Robert Capen, President of the Petitioner, testified that Petitioner has verbal arrangements to utilize the services of two jet aircraft to further its charter services. As a charter service, Petitioner transports third persons to a certain destination and provides the fuel and crew in return for an amount ranging from $300.00 to $750.00 per charter hour, depending on the length of the flight. The amount for services paid by third persons are made payable by check or other credit memos to Petitioner and said amounts are reported as income to the Internal Revenue Service. Pursuant to the verbal agreement with the aircraft owners, Petitioner guarantees that the aircraft will be chartered to third persons three hundred (300) hours annually. In return therefor, Petitioner pays the aircraft owners $300.00 per charter hour on a monthly basis. In addition thereto, Petitioner provides crews, maintains, schedules and operates the aircraft for the owners and is responsible for the proper licensing and certification of the aircraft for charter flights. For these services, Petitioner received a management fee in the total amount of $7,500.00 per month from the two owners of the aircraft. Based on the $300.00 per charter hour fee which is paid by Petitioner to the owners, Respondent entered its assessment claiming that the services provided by Petitioner constitute a "lease or rental" as provided in Section 212.02(2)(a), Florida Statutes. Respondent also points out that the legislative intent as enunciated by the state is that every person is exercising a taxable privilege when leasing or renting tangible property within Florida as set forth in Chapter 212.05, Florida Statutes, and that a tax therefore must be imposed on the gross proceeds of all rentals or leases of tangible personal Property, citing Section 212.11(3), Florida Statutes and Department of Revenue Rule 12A-1.71(1), Florida Administrative Code. Based on the facts adduced at the hearing including the testimony of Messrs. Capen, Nelson Brown and James Santimaw, President, Secretary and Treasurer respectively, it appears that this case is governed by the statutory authority contained in Section 212, Florida Statutes, as implemented by Respondent's Rule 12A-1.71, Florida Administrative Code. Although Petitioner urges that its services amount to the creation of an agency relationship between the aircraft owners, the relevant facts tend to show otherwise. For example, Petitioner provides fuel and crew while third persons did not take possession of nor exert any control over the aircraft. As stated, Petitioner charges and receives an amount ranging from $500.00 to $750.00 per charter hour directly from third persons who have no dealings whatsoever with the aircraft owners. In the absence of any evidence tending to show that any type of agency relationship existed other than the statements advanced by Mr. Robert Brown during the course of the hearing, I hereby conclude that the Petitioner's contention that the services which it renders to third parties amount to a rental of tangible property and is therefore a taxable service within the meaning of Chapter 212, Florida Statutes. Petitioner's final argument that its charter service amounts to a brokerage arrangement was also considered however this argument must also fall as there was no credible evidence tending to establish that the Petitioner was in any manner acting as broker for anyone other than itself.
Recommendation Based on the foregoing findings of fact and conclusions of law as recited above, it is recommended that the assessment referred to herein he upheld as a valid assessment. RECOMMENDED this 7th day of July, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Patricia S. Turner, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32304 Rod Tennyson, Esquire Ombres, Powell & Tennyson, P.A. Suite 600, Clematis Building 208 Clematis Street West Palm Beach, Florida 33401 Robert L. Shevin Attorney General The Capitol Tallahassee, Florida 32304
