Findings Of Fact Petitioner is Fred Burke, Jr. He was an existing employee of a juvenile detention facility in Jacksonville, Florida in 1978, when Respondent assumed responsibility for operation of the facility. Petitioner continued to be employed by Respondent in the position of detention careworker class I, until notified of his demotion and reassignment to other duties on May 25, 1989. Respondent's demotion and reassignment of Petitioner followed Petitioner's refusal to work overtime on two occasions. On each of these occasions, Petitioner cited his cardiac condition as the basis for his refusal. All detention care workers in the facility are subject to mandatory overtime policy requirements which provide that overtime may be required if there is a need for additional supervisory coverage of clients. Prior to taking the demotion and reassignment action, Respondent sought an independent medical evaluation of Petitioner's ability to perform the duties of the position of detention careworker class I. Respondent required Petitioner to report to a family care physician who declined to make a medical judgement regarding Petitioner's health. Instead, the physician suggested that Respondent obtain the opinion of the cardiologist who had treated Petitioner for his heart condition in 1987. On May 4, 1989, that cardiologist offered his opinion as to Petitioner's health. Specifically, the doctor, who had seen Petitioner as recently as February 1989, noted that Petitioner's health deficiencies dictated that he work no more than eight hours per day; that he refrain from strenuous activity; that he not break-up fights; and that he not carry clients out of the facility in the event of fire. The specific work prohibitions noted by the cardiologist are all job tasks that an individual assigned to a detention careworker position, may be expected to perform. Upon the expiration of a required notice period to Petitioner, Respondent effectuated the reassignment of Petitioner to the position of cashier in the food stamp office. The position requires no overtime work and is less stressful. Petitioner is generally permitted to sit in the course of performing his duties. Following his reassignment, Petitioner continued to enjoy his same salary, although the cashier position occupied a lower pay grade than his previous position. Two other employees were alleged by Petitioner to have received favored treatment from Respondent. These employees, both female, did receive evaluations for the period ending in 1989 which indicated that their work performance exceeded required standards. While the evaluations made the other two employees eligible for merit incentive pay increases, neither employee ever received such an increase or any other pecuniary benefit. Petitioner, whose evaluation reflects that he achieved required work standards, did not receive disparate treatment from that accorded the two female employees by Respondent. As established by the Final Order of the PERC Commission in Case No. CS-89-166, Respondent's transfer to the position of food stamp cashier was warranted, comported with procedural requirements and served a legitimate governmental interest. Respondent does not have a work practice which discriminates with regard to compensation, conditions and privileges of employment on the basis of an employee's sex or handicap. Further, Petitioner has not been subjected to such discrimination by Respondent.
Recommendation Based on the foregoing, it is hereby recommended that a Final Order be entered dismissing the Petition for Relief. RECOMMENDED this 11th day of December, 1991, in Tallahassee, Leon County, Florida. DON W.DAVIS 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 11th day of December, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5278 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. RESPONDENT'S PROPOSED FINDINGS 1.-18. Adopted in substance, but not verbatim. PETITIONER'S PROPOSED FINDINGS Petitioner's proposed finding consisted of nine unnumbered paragraphs. Those paragraphs have been numbered one through nine, respectively, and are addressed as follows: 1.-7. Adopted in substance. Rejected, not supported by the greater weight of the evidence. Rejected, not supported by the greater weight of the evidence. Further, one female employee had always been employed in the "lighter duty" situation of the control room. The other female employee was placed in a telephone receptionist position. Notably, no creditable evidence was presented that either of these employees refused to work overtime, or that they were not put on the "bubble list." COPIES FURNISHED: Robert Travis, Jr., Esq. 16 North Adams Street Quincy, FL 32351 Scott D. Leemis, Esq. Assistant District Legal Counsel P.O. Box 2417 Jacksonville, FL 32231-0083 Ronald M. McElrath Executive Director Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 Margaret Jones Clerk Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 Dana Baird, Esq. General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925
The Issue The issue here concerns the propriety of the Respondent, State of Florida, Department of Revenue's assessment of tax under authority of Sections 201.01 and .08, Florida Statutes, in the amount of $11,557.20 and penalty of $577.86 against the Petitioner, Landmark Bank of Brevard. The specific nature of the assessment is one pertaining to items identified as detachable "Promissory Notes" which are attached to documents entitled "Trust Receipts."
Findings Of Fact The facts in this case reveal that the Petitioner Landmark Bank of Brevard, hereafter referred to as the "Bank," made loans to several motor vehicle dealers in Brevard County. The borrowers were Carl Schmidt Motors, Inc.; Bennie C. Chapman, who does business as Chapman Auto Sales; and Harley Davidson of Melbourne, Inc. The arrangements for the loans were on the basis that the dealers would apply with the Bank to receive moneys which would be used to "floor plan" automobiles and motorcycles being sold through their retail outlets. The applications were processed through the loan committee and when the loans were approved a Promissory Note was signed by the appropriate persons acting in behalf of the dealers. (Copies of the notes executed were attached to the Petition for Formal Hearing and acknowledged to be correct through the answer filed in behalf of the Respondent and the notes as attached to the Petition are being provided with this Recommended Order together with those exhibits offered in behalf of the parties.) The notes allow for the single disbursement of a stated amount of money, with the repayment of principal and payment of interest being due by one payment for which demand is made within a period as short as several months or as long as one year depending on the note conditions. Collateral is provided, according to the terms of the notes, either by the lease and rental autos listed on separate documents entitled "Trust Receipts," which Trust Receipts are held by the Bank or otherwise described as such motor vehicles as were then owned by the dealers at the time the execution of the note or as would thereafter be acquired. These notes, meaning the initial Promissory Notes, had Documentary Stamps placed and canceled in the monthly journal of the Bank at the time of the execution of the Promissory Notes, in an effort by the Petitioner to comply with Section 201.08, Florida Statutes. The amount of Documentary Stamps utilized was in keeping with the face amount of the loan proceeds reflected on the Promissory Notes. Therefore, when the Promissory Notes are examined an impression is created that a single disbursement of loan proceeds has been made for which Documentary Stamp tax has been collected. In reality, the arrangement between the dealers and the Petitioner was to the effect that the full amount of the loan proceeds would not be assigned to the account of the dealers upon execution of the note. What would happen, is that the dealers would be allowed to make "draws" against the loan proceeds on the basis of surrendering the title of a used motor vehicle which they had acquired or having the manufacturer of a new motor vehicle submit the Manufacturer's Certificate of Origin to the Bank. In turn, moneys were advanced to the dealer equal to the value of the used unit or commensurate with the amount reflected on the Manufacturer's Certificate of Origin if a new unit. These titles and Manufacturer's Certificates of Origin were held as collateral and the dealers would take possession of the actual vehicles to be placed in the dealer's inventory until a retail purchase had been made. The vehicles for which the Petitioner had received title or the Manufacturer's Certificate of Origin were then listed on documents called "Trust Receipts." The "Trust Receipts" would show the vehicle description, make, serial number and price as described in the Manufacturer's Certificate of Origin or title. These descriptions were placed on individual "Trust Receipts" based upon the date the evidence of ownership was submitted from the dealer of the Bank. That is to say, if four Manufacturers' Certificates of Origin or titles were submitted to the Bank at one time, then four of the vehicles would be listed on a single "Trust Receipt" as opposed to listing the four new units on a "Trust Receipt" that already had a unit or units listed from another visit by the dealer. Examples of the various "Trust Receipt" documents may be found in the Respondent's Composite Exhibit 3 admitted into evidence which contains copies of the "Trust Receipt" examples. The "Trust Receipt" documents had attached to them an item entitled "Promissory Note," which item could be detached from the body of the "Trust Receipt." Some examples in the Respondent's Composite Exhibit 3 have the "Promissory Note" affixed, reflecting a date and money amount equal to the amount arrived at by totaling the value related to the various units shown in the "Trust Receipt." These examples also list the borrower's name and are signed by Margy Driggers, the Assistant Cashier of the Petitioner. Some are signed by Margy Driggers, with the initials "P.O.A." placed in front of or after her title as Assistant Cashier. One other example is the same as above but without the initials "P.O.A." There is also an example signed by Bennie C. Chapman, one of the dealers who borrowed money. The Chapman example reflects the amount of value shown in the "Trust Receipt," to which the "Promissory Note" is attached and it has a date, but does not reflect the amount of interest to be paid if this is indeed a Promissory Note. There was another category of "Trust Receipt" and attached "Promissory Note" reflecting motor vehicles for which money had been loaned and this was a type in which no entries had been made on the "Promissory Note"; however, an example of this type was not provided through the Respondent's Exhibit 3. Both parties acknowledged that the initials "P.O.A." stand for power of attorney. They disagree on the question whether a power of attorney had been granted to the Petitioner to act in behalf of the subject dealers. The Petitioner through its witnesses claim that the designation "P.O.A." is simply an extension of a long standing policy of the Bank which predates the current Assistant Cashier and has no meaning. Therefore, no power of attorney has ever been granted from the dealers to the Bank to execute promissory notes on behalf of the dealers. The Respondent through its auditor, whose investigation led to the assessment in dispute, claims that Margy Driggers, the Assistant Cashier, told him that "P.O.A." means power of attorney and that she had the ability to sign for Carl Schmidt. (Carl Schmidt Motors, Inc.) None of the dealers were presented in the course of the hearing to state their position on the granting of power of attorney to the Petitioner for purposes of executing the item known as "Promissory Note" attached to the various "Trust Receipts," and there are no written documents which would demonstrate the granting of a power of attorney to the Bank. Moreover, nothing in the original Promissory Notes executed by the dealers leads to the conclusion that the item known as "Promissory Note" attached to the "Trust Receipt" may be executed by a Bank official through power of attorney for the dealer. Consequently, no power of attorney has been shown to be granted from the dealers to Margy Driggers or any other employee of the Petitioner, on the subject of executing "Promissory Notes" attached to the "Trust Receipts." When the items were filled out, copies of the "Trust Receipts" and attached "Promissory Notes" were forwarded to the several dealers. When a dealer sold one of the automobiles for which the Petitioner held the title or Manufacturer's Certificate of Origin as security, then the dealer paid an amount equal to that amount reflected in the "Trust Receipt" document and an entry was made in the date paid column of that document which showed that amount of debt had been satisfied by the dealer. During the operative period of the initial Promissory Note, meaning that period between the time of the execution of the note and the time the note was due as reflected on the face of the note, the dealer could borrow an amount not to exceed the face amount of the loan proceeds and if some portion of that amount was retired, then an additional amount could be borrowed, which effectively meant that in the active life of the loan as shown by the initial Promissory Note more money could be borrowed during the life of the note than the amount reflected on the face of the Promissory Note. For example, hypothetically the Promissory Note could entitle the dealer to borrow $19,959.00 on May 10, 1976, to be repaid by May 10, 1977. That dealer could then borrow $19,959.00 between those dates and pay back that amount of money with interest and borrow an additional $5,000.00 to be paid back before the expiration date of the loan and in actuality would have borrowed $24,959.00, ostensibly under the terms and conditions of the initial note. These additional amounts of loan proceeds cannot be seen by examining the initial Promissory Notes; they can only be discovered by adding the individual amounts reflected in the "Trust Receipts" and comparing the total to what is shown by adding the loan amounts depicted in the initial Promissory Notes. This is in fact what was done by the auditor in conducting the audit and it is the differential between the amounts shown in the "Trust Receipt" aggregate as contrasted to the initial Promissory Note aggregate for which the Respondent claims Documentary Stamp tax is owed. The Respondent would have the Documentary Stamp tax applied to some combination of the so-called "Promissory Notes" attached to the "Trust Receipts" equal to an amount representing the differential spoken to before. The Respondent did not establish which "Trust Receipts" with attached "Promissory Notes" would be subject to the assessment of Documentary Stamp tax. Through this process, the Respondent in its Revised Notice of Assessment is claiming tax of $11,557.20 and a penalty of $557.86. (A copy of this notice may be found as Respondent's Exhibit 4 admitted into evidence.)
Recommendation It is RECOMMENDED that the proposed assessment for Documentary Stamp tax and penalty made by the Department of Revenue, State of Florida, against the Petitioner, Landmark Bank of Brevard, a banking corporation organized and existing under the laws of the State of Florida, formerly Landmark Bank of Melbourne, N.A., be DISALLOWED. 1/ DONE AND ENTERED this 9th day of April 1980 in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April 1980.
Findings Of Fact Respondent, Angel Portillo d/b/a Zippo's, is an alcoholic beverage licensee holding beverage license no. 39-518, Series 2-COP, issued by Petitioner. Zippo's is located at 1220 West Platt Street, Tampa, Hillsborough County, Florida. At all times pertinent to this cause Margaret Frey was employed as a barmaid at Zippo's. Billy M. Brown was at all time pertinent to this cause a special agent for the United States Department of Agriculture. David Menendez was at all times pertinent to this cause an investigative aide for the United States Department of Agriculture. Also, at all times pertinent Menendez was under the supervision and direction of Brown. Between June 18 and July 10, 1980, Brown and Menendez conducted an undercover investigation at Zippo's concerning allegations of food stamp fraud or trafficking in food stamps. At all times pertinent to this cause, Zippo's was not authorized by the United States Department of Agriculture to receive or redeem food stamps issued by the United States Government. On June 18, 1980, Margaret Frey, while on duty at Zippo's, purchased one hundred fifteen (115) dollars worth of food stamps from Menendez for sixty five (65) dollars cash. On this occasion, Menendez was accompanied by Brown. On June 23, 1980, Frey, while on duty at Zippo's, purchased two hundred ten (210) dollars worth of food stamps from Menendez for one hundred (100) dollars cash. Menendez was again accompanied by Brown. On June 30, 1980, Frey, while on duty at Zippo's, purchased five hundred thirty (530) dollars worth of food stamps for two hundred (200) dollars cash from Brown. On July 7, 1980, Frey, while on duty at Zippo's, purchased five hundred twenty (520) dollars worth of food stamps for two hundred fifty (250) dollars from Brown. However, the transaction was executed at an apartment next door to Zippo's. On July 10, 1980, Frey, while on duty at Zippo's, purchased five hundred twenty five (525) dollars worth of food stamps for two hundred fifty (250) dollars cash from Brown. Portillo apparently had no actual knowledge of Frey's actions as he held a full-time job with a vending company during all times pertinent to this case. At all times pertinent to this cause, Respondent Portillo was absent from the licensed premises. Portillo's testimony established that he is only at Zippo's in the morning prior to opening, at shift change each afternoon (approximately 4:00 p.m.) and at closing time in the late evening or early morning. At all times pertinent to this cause, Margaret Frey was the only employee of Zippo's on the licensed premises. Frey initially testified that funds to purchase the food stamps ($865 total) were personal funds. She subsequently testified that her former husband provided some of the funds for these purchases and later testified that some of the funds for the purchase of food stamps came from a joint account she and her former husband had established at Freedom Federal in Tampa, Florida. Frey redeemed a portion of the food stamps purchased from Menendez and/or Brown at a grocery store nearby Zippo's, which grocery store was also owned by Respondent. This grocery store is and was at all times pertinent to this cause a retail store authorized to accept and redeem food stamps. Although Frey claimed that all purchases of food stamps made by her were conducted in a secretive fashion, Menendez's testimony established that on June 18, 1980, her purchase of one hundred fifteen (115) dollars worth of food stamps from him was conducted openly with said transaction made across the bar. As a result of the food stamp purchases discussed above, Frey was arrested and charged with violations of Federal Law by knowingly receiving food stamps in a manner not authorized by the Food Stamp Act of 1964, as amended. She was subsequently adjudicated guilty of these violations.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of the allegations contained in Counts 1, 2, 3 and 5 of the Administrative Complaint. It is further RECOMMENDED that Respondent's alcoholic beverage license no. 39-518 be suspended for a period of 14 days. DONE and ENTERED this 14th day of July, 1982 at 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 14th day of July, 1982. COPIES FURNISHED: John A. Boggs, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Robert A. Herce, Esquire HERCE & MARTINEZ Pan American Center Building A 4602 N. Armenia Avenue Tampa, Florida 33603 Gary A. Rutledge, Secretary Department of Business Regulation 725 Bronough Street Tallahassee, Florida 32301 Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Respondent David R. Hutto d/b/a Neighborhood Discount, signed a contract with the WIC Program administered by the Petitioner Department of Health and Rehabilitative Services on December 27, 1982, effective for the calendar year January 1 through December 31, 1983. One of the general conditions in the contract specifies that Neighborhood Discount, as a vendor, may be disqualified from participation in the WIC Program if it is disqualified from participation in any United States Department of Agriculture, Food and Nutrition Service Program. Respondent, operating as Neighborhood Discount, was disqualified from participation in the Food Stamp Program of the United States Department of Agriculture, Food and Nutrition Service Program, beginning July 16, 1983, for a period of six months. The basis for the disqualification was the sale of fourteen ineligible items including beer, cigarettes and a pocket knife.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered dismissing the proceedings to suspend the Respondent's WIC Program participation. DONE and ENTERED this 9th day of March, 1984, in Tallahassee, Florida. SHARYN L. SMITH 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 9 day of March, 1984. COPIES FURNISHED: Anthony W. DeLuccia, Jr., Esquire Department of Health and Rehabilitative Services Post Office Box 06085 Fort Myers, Florida 33906 David R. Hutto Neighborhood Discount 2130 Ford Street Fort Myers, Florida 33001 Alicia Jacobs, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 =================================================================
Findings Of Fact In time sequence, the following transactions took place: a. Petitioner, Myron Friedman, executed a contract with Willow Industries, Inc., a New York corporation, on August 14, 1973, for the purchase of properties located in Manatee County, Florida. Conquistador Estates, Inc., a Florida corporation, for profit, was incorporated under the laws of the State of Florida on September 25, 1973. Petitioner, Myron Friedman, borrowed $650,000 from Franklin National Bank of Long Island, New York, on October 29, 1973. Mr. Friedman executed a personal note to the Florida National Bank on October 29, 1973. Myron Friedman made a loan to Conquistador Estates, Inc. in the amount of $400,000 to purchase the Manatee County property on October 30, 1973. Conquistador Estates, Inc. purchased the properties described in the contract from Willow Industries, Inc. to Myron Friedman on October 30, 1973. Conquistador Estates, Inc. executed a mortgage to Myron Friedman in the amount of $400,000 on October 30, 1973, in exchange for the herein before mentioned loan of $400,000 on October 29, 1973. Myron Friedman assigned the herein before mentioned mortgage to Franklin National Bank as security for the personal loan of $650,000 on October 30, 1973. Conquistador Estates, Inc. deeded the properties acquired by it from Willow Industries, Inc. to Myron Friedman on May 28, 1974. Additional facts: The notes and the mortgage herein described are still in existence. Conquistador Estates, Inc. is still a viable corporation although it owns no property and Myron Friedman is the sole stockholder. There were no payments made to Petitioner, Myron Friedman, as required by the terms of the promissory note of Conquistador Estates, Inc. to Myron Friedman. In an Audit of documents recorded in the office of the Circuit Clerk in and for Manatee County, Florida, Respondent, Department of Revenue, determined that insufficient documentary stamps and documentary surtax stamps were affixed to the warranty deed dated May 28, 1974, between Conquistador Estates, Inc. and Petitioner, Myron Friedman, an individual. Subsequent to the audit, the Respondent issued a "Proposed Notice of Assessment of Tax and Penalty Under Chapter 201, Florida Statutes, documentary surtax in the amount of $439.45, pursuant to Section 201.021, Florida Statutes, and penalties in the amount of $1,639.14 pursuant to Section 201.17, Florida Statutes. Attached to the said notice was "Schedule A," an explanation of the basis for the demand for additional documentary stamp tax and documentary surtax. It explained that the warranty deed to Petitioner, Myron Friedman, individually, from Conquistador Estates, Inc., satisfied the existing mortgage and which rendered the mortgage unenforceable as to the original mortgagor, Conquistador Estates, Inc., and cited Department of Administration Rule 12A-4.13(2) Florida Administrative Code. "Defaulting Mortgagor: Where a mortgagor, in full or partial satisfaction of the mortgage indebtedness, conveys the mortgaged premises to the mortgagee, documentary stamp taxes are due on the transaction." Petitioner, Myron Friedman, contends: That Conquistador Estates, Inc. was just a nominee used for the purpose of securing a mortgage loan; That he is the sole owner of the corporation; That there was no conveyance in full or partial satisfaction of the mortgage since he is the sole owner of the corporation, and he is the grantee and that, therefore, no documentary stamp tax or surtax or penalty is due; That the mortgage itself is assigned and is still in existence. The Respondent contends: That the clear wording of statute, Section 201.02(1), F.S., controls the transaction which was a conveyance by warranty deed; That because the corporation, Conquistador Estates, Inc. has no assets and made no payments to Petitioner, the conveyance by warranty deed was in full satisfaction of the mortgage indebtedness and canceled the written obligation of the corporation to pay $400,000, the unpaid portion of the obligation secured by the mortgage. The Respondent further contends that the partial indebtness of the corporation itself to Petitioner was canceled.
Recommendation Assess the documentary stamp and the documentary surtax against Petitioner, Myron Friedman. Do not assess penalties for failure to pay tax required, inasmuch as it is apparent that the taxes which were paid were paid in good faith and that the taxes which were due and owing were not paid because of a misunderstanding of the requirements of Chapter 201, F.S. DONE and ORDERED this 28th day of May, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 1976. COPIES FURNISHED: Robert H. Carr, Esquire Post Office Box 3798 Sarasota, Florida 33578 Patricia Turner, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32304
The Issue The sole issue posed herein is: Whether or not the transfer to Petitioner by individuals Hugh P. Conser, Stewart L. Krug and Sidney Barbane1 of certain real property located in Pinellas County, Florida, on or about October 26, 1974, constitutes a conveyance subject to the Documentary Stamp Tax Act, pursuant to Chapter 201, Florida Statutes.
Findings Of Fact On or about October 26, 1974, the Petitioner received title to certain real property located Pinellas County, Florida, from Stewart L. Krug, Sidney Barbanel and Hugh P. Conser, the principals in KBC Development Corporation, which was recorded in Official Records Book 4229, page 1052, Public Records of Pinellas County, Florida. The only consideration, as evidenced by the deeds filed in the case, is that the conveyance was for "good and valuable consideration and ten dollars". This other good and valuable consideration, according to Petitioner and the other record evidence, consisted of the issuance of all one hundred shares of the authorized stock of KBC Development Corporation, Petitioner, as evidenced by the Minutes of the Shareholders Meeting of such corporation which was held on July 18, 1973. (See the minutes reflected in an attachment to Petitioner's Exhibit Number 1.) The issued stock had a par value of $5.00. The corporate entity, KBC, as Petitioner, was formed for the purpose of taking title to the property in question and, as evidenced by the record, had no other assets when the subject property was conveyed. On May 6, 1975, the Florida `Department of Revenue, Respondent, recorded in the office of the Circuit Court of Pinellas County, Florida, a warrant for collection of delinquent documentary stamp taxes in connection with the above-referenced transaction in the amount of $27,599.70, plus an identical amount of penalty, for a total sum of $55,212.40. Said warrant is recorded in O.R. Book 4286, page 31, Public Records of Pinellas County, Florida. Following a conference with the Department of Revenue, the taxes were paid by the Petitioner under protest. That payment set the stage for the Petitioner's filing of the claim for refund with the Respondent, the Comptroller of the State of Florida, pursuant to Florida Statutes section 215.26. The Petitioner argues that the only taxable consideration resulting from the subject conveyance was the par value of the stock, of which amount sufficient documentary stamps were affixed to the deeds in question. In support of this position, the Petitioner cites the fact that there are no income tax returns filed by the corporation, FIG; no business activities pursued by the corporation; no bank account of the corporation; and no assets held by the corporation, except as agents for the three individuals, Krug, Barbanel and Conser, all of which were acknowledged by all of the mortgagees. Additionally, the Petitioner urges that the bank and lending institutions involved regarded and held each individual personally liable for the indebtedness in connection with the loans advanced for the property in question. Finally, the Petitioner urges that, based on the conveyance in question, there was no shift in the economic burden to the corporation and, therefore, no taxable transaction occurred when the property in question was conveyed from the individuals, Krug, Barbanel and Conser, to FIG Development Corporation.
Conclusions The documentary stamp tax provided by Florida Statutes section 201.02 is an excise tax imposed on particularly described transactions, and in the case of instruments relating to realty, is based upon the total consideration involved in the transfer or conveyance. Thus, the key point in determining whether documentary stamps are to be affixed to an instrument transferring an interest in realty is in the presence or absence of consideration for the transfer. Rule 12A-4 .14, Florida Administrative Code, describes conveyances not subject to the documentary stamp tax as those "conveyances of realty without consideration, including. . .a deed to or by a trustee not pursuant to a sale . . . ." The facts of this case clearly do not illustrate an express or resulting trust relationship between KBC Development Corporation and its principals, Stewart L. Krug, Sidney Barbanel and Hugh P. Conser. When KBC took title to the property from Krug, Conser and Barbanel, the consideration was $10.00 and other valuable consideration and, based on the face of the instrument, the conveyance was not made to KBC subject to payment of any mortgages, etc., by KPC (Petitioner's Exhibit No. 1). Section 201.02(1), Florida Statutes (1975). See Florida Department of Revenue v. De Maria, 338 So.2d 838 (Fla. 1976). Additionally, the facts herein reveal that the banks and lending institutions involved in the transaction required the personal guarantees of the individuals, Krug, Barbanel and Conser. No evidence was introduced indicating that Petitioner, KBC Development Corporation, was anything more than an entity whereby the lending institutions had advanced funds for the primary mortgages to Continental Investment and Development Company, which was in no way related to the present corporation, KBC, and that the corporate entity was used to protect the lending institutions from any possible violations of usurious transactions. As stated, the personal endorsements and/or guarantees of the individuals, Barbanel, Krug and Conser, were required by the lending institutions before the primary mortgagee, Continental Investment and Development Company, would be released. Krug, Barbanel and Conser were no more nor less obligated to pay and perform under the obligation, after the conveyance than before. Although there was a change in the form of the obligation, there was no change in the substance. See e.g., Straughn v. Story, 334 So.2d 337 (Fla. 1st DCA 1976) cert. discharged 348 So.2d 954 (1977). (See Petitioner's Exhibits 2, 3 and 4.) For all of these reasons, it is the considered opinion of the undersigned that the Respondents have failed to demonstrate that the consideration for the conveyances in question were anything more than the par value of the stock and, accordingly, documentary stamp taxes should only be assessed in the amount of $4.10. Accordingly, I shall recommend that the excess assessments which Petitioner paid under protest be refunded.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED: That the Petitioner be refunded the amount of taxes and penalties it paid to the Respondent, Department of Revenue, under protest, over and above the amount it should have paid on the par value of the stock of KBC Corporation when the abovedescribed conveyance was made during October, 1974. RECOMMENDED this 3rd day of April, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building MAILING ADDRESS: 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Donald R. Hall, Esquire Goza, Hall & Peacock, P.A. 100 North Belcher Road Clearwater, Florida 33518 Cecil L. Davis, Jr., Esquire Assistant Attorney General The Capitol, Room LL04 Tallahassee, Florida 32304 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA, DEPARTMENT OF REVENUE TALLAHASSEE, FLORIDA KBC DEVELOPMENT CORPORATION, Petitioner, vs. CASE NO. 76-1596 GERALD LEWIS, as COMPTROLLER OF THE STATE OF FLORIDA, AND DEPARTMENT OF REVENUE, Respondents. / NOTICE TO: DONALD R. HALL, ESQUIRE ATTORNEY FOR PETITIONER GOZA, HALL & PEACOCK, P.A. 100 NORTH BELCHER ROAD CLEARWATER, FLORIDA 33518 CECIL L. DAVIS, JR., ESQUIRE ATTORNEY FOR RESPONDENTS ASSISTANT ATTORNEY GENERAL THE CAPITOL LL04 TALLAHASSEE, FLORIDA 32304 You will please take notice that the Governor and Cabinet, acting as head of the Department of Revenue at its meeting on the 12th day of June, 1979, approved the Respondent's Substituted Order, in lieu of the Division of Administrative Hearing's Recommended Order dated April 3, 1979. A copy of the Respondent's Proposed Substituted Order is attached. This constitutes final agency action by the Department of Revenue. JOHN D. MORIARTY, ATTORNEY DIVISION OF ADMINISTRATION DEPARTMENT OF REVENUE STATE OF FLORIDA ROOM 104, CARLTON BUILDING TALLAHASSEE, FLORIDA 32301 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Notice was furnished by mail to Donald R. Hall, Esquire, Goza, Hall & Peacock, P.A. 100 North Belcher Road, Clearwater, Florida 33518, Attorney for Petitioner; by hand delivery to Cecil L. Davis, Jr., Esquire, Assistant Attorney General, The Capitol LL04, Tallahassee, Florida 32304, Attorney for Respondents and James E. Bradwell, Esquire, Hearing Officer, Division of Administrative Hearings, Department of Administration, Room 530, Carrolton Building, Tallahassee, Florida 32304, this 14th day of June, 1979. JOHN D. MORIARTY, ATTORNEY Attachment STATE OF FLORIDA
The Issue The issue is whether the Respondent's certification should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact William H. Wood was certified by the Criminal Justice Standards and Training Commission on November 16, 1973, and issued certificate number 02-9291. On September 22, 1986, Wood answered an advertisement in a publication known as Linn's Stamp News. The publication caters to the interests of stamp collectors. The advertisement read as follows: MINT POSTAGE wanted. Ungummed, uncancelled postage under 10 and postage dues - 50%, ungummed, uncancelled postage over 9 , special deliveries, postal stationary and officials - 65%. The advertisement was placed by a Maryland stamp dealer who was assisting United States Postal Service inspectors. The advertisement was placed in an effort to identify persons engaged in the unlawful activity of reuse of previously used postage stamps for mailing. Wood answered the advertisement on September 22, 1986, by letter. He stated in the letter: Sir, you advertised in Linn's Stamp News that you are buying ungummed mint postage. The ad had no shipping instructions. I have the following. A quantity and various denomination of stamps that's listed, with dollar value at the stated percentage in the ad. Please advise shipping instructions. The cooperating stamp dealer forwarded a reply to Wood on September 29, 1986, which indicated a willingness to begin buying stamps from Wood if they were "ungummed, uncancelled." "Ungummed" refers to the condition of a postal stamp which lacks the adhesive backing usually present on unused postage stamps. "Uncancelled" postage refers to stamps which have not been previously utilized to post a letter or a parcel. "Mint" postage refers to stamps which are gummed, uncancelled, and in pristine condition. On October 6, 1986, Wood forwarded about 1800 postage stamps of various denominations with an aggregate face value of about $258.00 to the cooperating Maryland stamp dealer. Soon thereafter, Wood was sent a check for $164.89 in payment for the stamps. Many of the stamps supplied by Wood bore evidence of being previously used to post a letter or a parcel. The cooperating stamp dealer sent a letter to Wood on October 15, 1986, which thanked him for his shipment of stamps and indicated a need for stamps of $100.00 face value per month. The letter also stated that the stamp dealer knew a friend named Jenkins who was in the mail order business and had similar needs for stamps. On January 6, 1987, the cooperating stamp dealer, "Chuck," received another shipment of postage stamps from Wood. "Chuck" forwarded a check payable in the amount of $32.92 to Wood in payment for the receipt of stamps with a face value of $51.00. "Chuck" enclosed a letter to Wood with the check which stated in part: You will notice that it is a J.J. Enterprise check. Jeff has been needing so much of this postage for his business mailings he has been buying most all of my shipment that I get in. Therefore, if you would be kind enough to just send any future shipments directly to his address, I would appreciate it. I will still make my share. Thank you. For your records his address again is Jeff Jenkins, J.J. Enterprises, Box 22015, Baltimore, Maryland 21203. . . . "Jeff Jenkins" is an assumed name of Postal Inspector John T. Evans, acting in an undercover investigative capacity. "J.J. Enterprises" likewise is a fictitious, non-existent business created for purposes of the investigation of Wood by the Postal Service. Subsequent to January 6, 1987, seven more shipments of stamps were received from Wood by postal inspectors. The last arrived on June 16, 1988. In each case, Wood received a check in payment for the stamps. The types of stamps forwarded by Wood in all the shipments would have been of little value for stamp collection purposes. Accordingly, the market value for such a purpose would have been far below the amounts paid to Wood for the stamps. The sum of the face value of the stamps was $753.10. The price paid to Wood was consistent with the value of used stamps which were to be unlawfully reused for postage to lower mailing expenses. In one of the correspondences forwarded by Postal Inspector John Evans, posing as "Jeff Jenkins," Wood was told of a friend, Don Wilson, who lived in Alabama. The Respondent was told that Don Wilson was interested in buying "these type stamps." "Don Wilson" is an assumed name of Postal Inspector Larry Dodson, acting in an undercover investigative capacity. On June 23, 1988, Inspector Dodson telephone Wood, posing as Don Wilson. Inspector Dodson told Wood that he was interested in buying stamps in order to reduce mailing expenses. Wood stated that he would be willing to sell stamps to Don Wilson. On June 29, 1988, Inspector Dodson and four other postal inspectors served a search warrant at Wood's home. The search yielded thirteen shallow plastic trays and a plastic tub of the type used to soak stamps off paper envelopes. Inspector Dodson also found a quantity of stamps which had been removed from the corners of envelopes by soaking. Inspector Dodson found approximately 5100 mailing envelopes utilized by the West Florida Gas Company to receive utility payments. He also located about 1800 mailing envelopes utilized by Gulf Coast Electrical Cooperative to receive utility payments. The utilities' envelopes bore some cancelled and some uncancelled postage stamps. Inspector Dodson also found about 173,000 used postage stamps of various denominations, most packaged in glassine envelopes, one hundred stamps per envelope. The quantities and types of stamps which Wood had stored were of little collector value. On April 11, 1989, pursuant to federal charges filed against him by the United States Attorney in the Northern District of Florida, Wood pleaded guilty to the charge of dealing in cancelled postage stamps in violation of 18 U.S.C. Section 1720.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order and therein revoke the certification of William H. Wood. DONE and ENTERED this 30th day of July, 1990, in Tallahassee, Florida. DIANE K. KIESLING 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 30th day of July, 1990. Copies furnished to: Joseph S. White Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 William H. Wood 104 North Claire Drive Panama City, Florida 32401 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact The stipulated facts are as follow: The Petitioners are purchasers of subleasehold interests in Ocean Club III, a condominium in Indian River County, Florida. All of the Petitioners purchased their subleasehold interests from Dye and Reeves Development Company in 1973, except the Petitioner Helen Bane, who purchased her subleasehold interest from the Petitioner Richard Long in 1974. The duration of the subleases was approximately 98 years, and they were paid for with present consideration consisting of cash and mortgages. The document included as Exhibit "A", entitled Unit Sublease, represents the conveyance by which each of the Petitioners acquired his or her subleasehold. No documentary stamp taxes or surtaxes were paid on these conveyances. Prior to closing with the Petitioners, the attorney for the Dye and Reeves Development Company requested William Stanley, Chief of the Documentary Stamp Tax Bureau, Department of Revenue, to give an opinion on whether the Unit Sublease, Exhibit "A", requires documentary stamp taxes and surtaxes. Stanley, in a letter dated July 3, 1973, stated his opinion to be that no documentary stamp taxes and surtaxes were due. A copy of this letter is attached as Exhibit "B." On November 13, 1974, the Attorney General released an official opinion, AGO 074-350, which reversed the position earlier taken by Stanley regarding taxability of conveyances of subleasehold interests. The Department of Revenue has adopted this ruling as its own. Based upon the letter from Stanley, the Dye and Reeves Development Company assured the Petitioners that no documentary stamp taxes or surtaxes would be required on the Unit Sublease. The Petitioners had knowledge of the letter or its contents at the time they closed the transaction, but at the time of closing nevertheless requested an Indemnification Agreement, Exhibit "C" herein, in which Dye and Reeves agreed to bear the cost of documentary stamp taxes due upon the Sublease. Exhibits "A," "B," and "C" represent all the relevant documents in this litigation. The Department of Revenue has issued Proposed Notices of Assessment against the Petitioners based upon an alleged documentary stamp tax and surtax liability under the Unit Sublease. The Department of Revenue has not assessed any penalties against the Petitioners. The Petitioners are unable to recover the sums alleged to be due as to taxes and surtaxes from the Dye and Reeves Development Company because the Company has no assets. Petitioners are also barred by limitations from recovering the money from the estate of Mr. Dye, who is deceased. The Petitioners and the Department of Revenue's Tax Examiner have held an informal conference, in which the two parties were unable to resolve their differences concerning the aforementioned assessment. If the Petitioners are found to be liable for documentary stamp taxes and surtaxes, the following amounts represent the proper computation of their liability: NAME TAX SURTAX TOTAL EDWARD K. HALSEY 106.50 10.45 116.95 HELEN C. BANE 117.60 43.45 161.05 W.B. WHITAKER, et ux. 165.00 16.50 181.50 JAMES N. SKINNER 115.50 11.55 127.05 MARY GLENNAN 98.40 36.30 134.70 JOHN F. McFEATTERS, et ux. 127.50 46.75 174.25 ALLEN TOUZALIN 121.50 14.85 136.35 RICHARD LONG, et ux. 117.60 11.00 128.60 HOWARD BAIN, et ux. 103.50 7.70 111.20 JOHN MYLES DEWAR, et ux. 126.00 46.20 172.20 JOHN S. STEPHENS, et ux. 99.00 7.70 106.70 PHYLLIS T. HERMAN 103.50 10.45 113.95 CHARLES W. CHRISS, et ux. 96.00 7.15 103.15 KATHRYN LOCKWOOD, et ux. 97.50 35.75 133.25 KATHRYN LOCOD, et ux. 163.50 59.95 233.45 KATHRYN LOCKWOOD, et ux. 100.50 36.85 137.35 The sums stated above do not include any interest which may have accrued on the alleged liability. Pursuant to stipulation of the parties, the testimony of Howard W. Bain, a Petitioner, was offered on behalf of all of the Petitioners in this case. He testified that he purchased a unit at Ocean Club III from Dye and Reeves Development Company in early June, 1973. Prior to the closing of that purchase, he was advised by his attorney that the latter expected to be provided by the developer's attorney a letter from the Department of Revenue that would state documentary stamps were not payable on the purchase of the condominium unit. Bain would not have closed the purchase if he had had to pay documentary stamp taxes on the transaction. It was his understanding that if any taxes did become due and payable they would be paid by the developer incident to the indemnification agreement. He was unaware at the time that Dye and Reeves Development Company might go out of business in the future. (Testimony of Bain).
Recommendation That Petitioners L.L. Lockwood and Kathryn H. Lockwood, his wife; Howard H. Bain and Mary C. Bain, his wife; Richard H. Long and J. Ann Long, his wife; Edward K. Halsey; Mary Glennan; W.B. Whitaker; Allen Touzalin; and John F. McFeatters and Emily J. McFeatters, his wife, be relieved from any liability from documentary stamp tax or surtax under Chapter 201, F.S. That Petitioners Helen C. Bane, James M. Skinner, John Myles Dewar, et ux., John S. Stephens, et ux., Phillis T. Herman, and Charles W. Chriss, et ux., be held liable for the payment of documentary stamp tax, surtax, and interest thereon, pursuant to Chapter 201, Florida Statutes, in the amounts set forth in the foregoing Findings of Fact. DONE and ORDERED this 9th day of December, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1976.
