Findings Of Fact Respondent, Dick's Auto Sales, Inc., is the holder of a motor vehicle dealer license issued by the Petitioner, Department of Highway Safety and Motor Vehicles ("the Department"). Richard R. Borst ("Borst") is the president of Respondent Dick's Auto Sales, Inc., and one of two stockholders in the company. At all times material hereto, the Respondent maintained a business address at 110 N.W. 18th Avenue, Delray Beach, Florida. Borst also operates an auto parts business at the same address as the motor vehicle dealership. On or about June 9, 1989, Borst appeared before the Honorable James C. Payne, U.S. District Judge for the Southern District of Florida, and entered a plea of guilty to aiding and abetting the transportation of stolen motor vehicle parts in violation of Title 18 U.S.C. Section 2314 & 2 in Case Number 89-6032- Cr-PAYNE-(01), United States v. Richard Borst,. Based on the plea entered and the plea agreement then before the court, Borst was adjudicated guilty in a Criminal Judgment dated June 28, 1989. Imposition of a sentence of confinement was suspended and Borst was placed on probation for a period of three (3) years. Borst was also fined Fifty Dollars ($50.00). Borst's conviction arose in connection with his purchase of auto parts from a "chop shop" (i.e., an operation which dismantled stolen cars and sold the parts,) in the Connecticut area. The purchase took place in May, 1987. In April, 1988, Borst met with state and federal investigators and agreed to fully cooperate with a task force set up to investigate the operation. He also agreed to testify against the individuals involved. While Borst was in Connecticut waiting to testify, the other defendants entered guilty pleas. In Respondent's initial dealer license application dated September 24, 1987, Borst stated under oath that he was not facing criminal charges. On April 27, 1989, Borst, as president of Respondent, signed an application to renew Respondent's license, stating under oath: Under penalty of perjury, I do swear or affirm that the information contained in this application is true and correct and that nothing has occurred since I filed my last application for a license or application for renewal of said license, as the case may be, which would change the answers given in such previous application. On January 18, 1989, Borst and his attorney signed a "Consent to Transfer of Case for Plea and Sentence", in United States v. Richard Borst, Criminal No. B-89-6-(TFGD), United States District Court for the District of Connecticut (the "Connecticut Case"). This document expressly acknowledges that an Information was pending against Borst in the United States District Court for the District of Connecticut, that Borst wished to plead guilty to the offense charged, and that he consented to the disposition of the case in the Southern District of Florida. The Information entered in the Connecticut Case, charged Borst with violation of 18 U.S.C. Sections 2314 and 2, for transporting motor vehicle parts in interstate commerce knowing them to have been stolen. The date of this Information was not established, but it was clearly on or before January 18, 1989. Thus, sometime prior to January 18, 1989, Borst was charged with criminal violations of 18 U.S.C. Sections 2314 and 2, and these charges were pending when Borst signed and filed Respondent's renewal application for 1989. Petitioner contends that Borst's conviction is directly related to the business of being a motor vehicle dealer, especially since Borst operates a motor vehicle parts business in conjunction with his motor vehicle dealership. However, the evidence presented provided only a very limited factual background regarding the conviction, none of Petitioner's representatives talked with the investigators or prosecutors in the criminal case and no evidence was presented regarding the Respondent's role in the transactions leading to Borst's conviction. At the time of the hearing, Borst was fifty-three (53) years of age. Within the last twenty-four (24) months, he has suffered numerous health problems including a nervous breakdown which necessitated an eighteen (18) week period of confinement to his residence for rest. He currently undergoes twice- weekly therapy with a psychiatrist and has been taking an antidepressant prescription. In addition, in October of 1989, he was admitted to the hospital for a heart condition. Subsequently, a balloon angioplasty was performed on him. He was later re-admitted to the hospital for five (5) days as a result of post surgery complications. He is also an insulin dependent diabetic. He attributes most of these health problems to the stress and turmoil of his criminal conviction. In light of his emotional and physical condition, he has been required to reduce his work load. Borst has been actively trying to sell the existing business in order to retire the outstanding indebtedness on the business and the property on which it is located. There is no evidence that the Respondent and/or any of its duly elected officers or stockholders have ever been subjected to any other complaints and/or investigations by the Department or by any other investigatory or regulatory agency during the past seventeen (17) years since it was originally licensed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department enter a Final Order which finds Respondent not guilty of the violation alleged in the Administrative Complaint and dismisses the Administrative Complaint. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 5th day of June, 1990. J. STEPHEN MENTON 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 5th day of June, 1990.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by James H. Peterson, III, Administrative Law Judge of the Division of Administrative Hearings, pursuant to the Parties’ Settlement Stipulation and Motion to Relinquish Jurisdiction, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED. Filed May 29, 2013 9:29 AM Division of Administrative Hearings DONE AND ORDERED this ag day of May, 2013, in Tallahassee, Leon County, Florida. Buréau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this at. day of May, 2013. Vows te Dealer Kicense Administra" ~ NOTICE OF APPEAL RIGHTS ).. 4-. > Nalini Vinzyak, 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. JB/jdc Copies furnished: Micahel Khanjahanbakhsh, President Car Store of Altamonte, Inc. 425 Devon Place Heathrow, Florida 32746 Michael J. Alderman, Esquire Department of Highway Safety 2900 Apalachee Parkway, MS61 Tallahassee, Florida 32399 William F. Quattlebaum Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS? Fr (™ fer Bf 0° MAY 20 2013 Daot. of Higitsay Sa: Orcs DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, Case No.: 13-1185 v. CAR STORE OF ALTAMONTE, INC., Respondent. / SETTLEMENT STIPULATION AND MOTION TO RELINQUISH JURISDICTION Petitioner, Department of Highway Safety and Motor Vehicles, and Respondent, Car Store of Altamonte, Inc., stipulate and agree to a settlement of this matter and move for relinquishment of jurisdiction for the purpose of entering a Final Order of the Department incorporating this Settlement Stipulation in the above-styled matter, as follows: 1. Respondent agrees to pay an administrative fine of five hundred dollars ($500). 2. If Respondent pays the amount specified in paragraph one above within the specified time, the Department will impose no further penalties or sanctions against Respondent. However, if Respondent fails to pay the amount specified in paragraph one above on or before the date provided in the Final Order, on the day following the payment date specified, Respondent’s motor vehicle dealer license will be automatically suspended and Respondent will cease to do business as a motor vehicle dealer. 3. If after suspension Respondent pays the amount specified in paragraph one above within 30 days following the date of suspension, its motor vehicle dealer license will : 3 a : : : a a aH ro 7 S ‘ : : : i “ & = . . : : x 7 . . . a “ immediately be reinstated without further penalties or sanctions. However, if Respondent fails to pay the amount due by the 30" day following the date of suspension, on the 31 day following the date of suspension Respondent’s motor vehicle dealer license shall be revoked by the Department without further notice. 4. If the Department suspends or revokes Respondent’s motor vehicle dealer license for non-payment as specified in paragraphs two and three above, said suspension or revocation shall be without recourse to the Respondent and Respondent hereby expressly waives any right to appeal or otherwise contest the suspension and revocation. 5. It is expressly understood that this Settlement Stipulation has no force and effect until the Department enters a Final Order adopting same. 6. Respondent and the Department fully understand that this Settlement Stipulation, and the subsequent Final Order incorporating same, will not in any way preclude additional proceedings by the Department against Respondent for acts or omissions not specifically detailed in the Administrative Complaint filed in this matter. 7. Respondent and the Department expressly waive all further procedural steps and Respondent expressly waives all rights to seek judicial review of or otherwise challenge or contest the validity of this Settlement Stipulation and the Final Order of the Department. 8. Respondent waives the right to seek any attorney’s fees or costs from the Department in connection with this administrative proceeding. WHEREFORE, the parties move the Administrative Law Judge for the entry of an order returning jurisdiction of this matter to the Department. NYS o Signed this 22 214. of, 2013 Signed this 16 day of Nan , 2013. Vudu BAELLLEAE Mehaal FT. levine Michael Khanjahanbakhsh, President AssistantGeneral Counsel Car Store of Altamonte, Inc. Department of Highway Safety 1380 East Altamonte Drive and Motor Vehicles Altamonte Springs, Florida 32701 2900 Apalachee Parkway Tallahassee, Florida, 32399 Attorney for Petitioner w ue. STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, DIVISION OF MOTORIST SERVICES, ) ) ) ) Petitioner, ) ) vs. ) Case No. 13-1185 ) CAR STORE OF ALTAMONTE, INC., ) ) Respondent. ) ) ORDER CLOSING FILE AND RELINQUISHING JURISDICTION This cause having come before the undersigned on the Settlement Stipulation and Motion to Relinquish Jurisdiction, and the undersigned being fully advised, it is, therefore, ORDERED that: 1. The final hearing scheduled for June 7, 2013, is canceled. 2. The file of the Division of Administrative Hearings is closed. Jurisdiction is relinquished to the Department of Highway Safety and Motor Vehicles. DONE AND ORDERED this 21st day of May, 2013, in Tallahassee, Leon County, Florida. Witton Fo Quatteban WILLIAM F. QUATTLEBAUM 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 21st day of May, 2013. COPIES FURNISHED: Jennifer Clark, Agency Clerk Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-430 2900 Apalachee Parkway, Mail Stop 61 Tallahassee, Florida 32399 Dennis S. Valente, Esquire Department of Highway Safety and Motor Vehicles 2900 Apalachee Parkway Tallahassee, Florida 32399 dennisvalente@flhsmv.gov Michael Khanjahanbakhsh Car Store of Altamonte, Inc. 425 Devon Place Heathrow, Florida 32746
Findings Of Fact The parties stipulated to the facts set forth in paragraphs 1-5, below. Stipulated Facts James Phillips is the president and sole shareholder of the Respondent, Sunshine Auto Sales, Inc. The Respondent's place of business is located at 2050 North West 36 Street, Miami, Florida 33142. The Respondent was issued motor vehicle dealer license number 7VI- 005928 on May 1, 1987. The Petitioner's order summarily suspending Respondent's license was dated September 17, 1987, and was served on Respondent on or about November 9, 1987. On December 22, 1987, the Circuit Court for the 11th Judicial Circuit, in and for Dade County, Florida, entered an emergency injunction against enforcement of Petitioner's Order of Summary Suspension, contingent upon the posting of a $2500 bond by Respondent. The bond was posted on March 31, 1988. Other Facts On November 17, 1976, Respondent's president and sole shareholder, James Phillips, executed a sworn affidavit as part of the application for a motor vehicle dealer license. In that affidavit, he stated that no partner or corporate officer of the Respondent had ever been arrested or convicted of a felony. In subsequent annual renewal applications for the years 1977-84, Phillips stated that all terms and conditions as set forth in the original application were correct. In actuality, Phillips was arrested for breaking and entering, theft and rape in 1956. In 1960, he was arrested for aggravated assault. In 1972, he was arrested for possession of a stolen motor vehicle. Grand larceny was the subject of his arrest in 1976. In 1982, he was arrested for aggravated battery. Phillips' statement that he interpreted this language on the application and renewal forms to be applicable only to the corporation itself is not credited due to his demeanor while testifying and the clarity of the statement on the application requiring such disclosure. The Petitioner's policy is not to deny or revoke licenses simply on the basis of an arrest record of the applicant or licensee. Instead, when the information is correctly provided by applicants or licensees, a further investigation is made by the Petitioner to determine if there has been a conviction of a crime meriting suspension or denial of a license. When Petitioner becomes aware that an applicant or licensee has falsely answered an application regarding previous arrests, the policy of Petitioner is to deny the application for licensure or institute revocation action against a licensee on the theory that such falsification shows a lack of honesty in the applicant or licensee. On February 24, 1986, and May 20, 1986, James Phillips received warning letters from the Department reminding him that failure to apply for title or to file for transfer of title within 20 days following delivery of a vehicle to a purchaser is a violation of Florida law. In June and July of 1987, an employee of Petitioner, Helen Wandell, made numerous attempts to obtain information from Respondent regarding a particular complaint against Respondent. Information was sought by Wandell regarding the identity of the vehicle which was the subject of the complaint. She telephoned Respondent's facilities on June 10, 11, 12, and 16, 1987, during regular business hours and received no answer. On June 17, 1987, Wandell went to the Respondent premises during regular business hours and found the facility closed. She left a note and James Phillips called her the following day. He gave her information concerning the subject vehicle which proved to be incorrect. Again, Wandell attempted to contact Respondent's establishment by telephone on June 22, and 23, 1987, but did not get an answer. She telephoned again on July 24, 1987, and spoke with Phillips. In the course of the conversation, he informed Wandell that he could not provide the vehicle identity information she sought. He further warned her not to call again, cursed her and threatened to kill her. Madeline Fils-Aime does not read or understand English very well. On April 8, 1987, she entered into a parol agreement to buy a 1981 Mercury automobile from Respondent. The agreed upon price, as established by testimony of Fils-Aime, was $750. This amount was to be paid in installments as the money became available to Fils-Aime. Until the total amount of $750 was paid, the car would continue to be owned by and remain in the Respondent's establishment. On April 8, 1987, Fils-Aime paid $160 to Robert Sayre, James Phillips' stepson, at Respondent's establishment toward the cost of the automobile. She received a receipt from Sayre. The receipt carried the notation "no refunds" and "sold as is." The receipt also carried a notation that the remainder of the funds would be due on April 15, 1987. Fils-Aime returned to Respondent's establishment on April 16, 1987, paid another $100, received another receipt signed by Sayre carrying a notation that the remainder would be due on April 26, 1987. This receipt also carried the notation "no refunds." Fils-Aime returned to the Respondent establishment again on April 21, 1987, and paid another $40 on the car. This time she received a receipt signed by Thomas Phillips, son of James Phillips, which carried the notation that the balance would be due on May 7, 1987. Another payment of $100 was made by Fils-Aime on May 4, 1987. Another receipt bearing the signature of Robert Sayre was received. A new balance due date of May 14, 1987, was shown on this receipt. Fils-Aime returned at a later date to make a subsequent payment, but the Respondent's establishment was closed. Approximately six weeks after the May 4, 1987, payment, Fils-Aime returned to Respondent's establishment to learn that the car for which she had been making payments was gone. Testimony of James Phillips establishes the sale of the vehicle to another person. Phillips also readily admitted knowledge of the payments made by Fils-Aime and the practice of granting extensions to her of the due date for the total balance at the time of each payment. Since his clientele is poor, he uses the "lay away" plan on occasion to sell vehicles to individuals like Fils-Aime. In spite of her demands, he did not return Fils- Aime's previous payments to her. At the time of the May 4, 1987, payment, Phillips gave Fils-Aime an envelope to use in the event the Respondent facility was closed on her return to make a future payment. He instructed her to leave the envelope with the body shop next to Respondent's establishment. A contractual document offered in evidence at hearing by Respondent to substantiate James Phillips version of the parol agreement with Fils-Aime is not credited with any probative value. The document appears unsigned by anyone and the portion of the page where Fils-Aime would have signed is conveniently torn off and missing. Additionally, Fils-Aime denied knowledge of the document. After receipt of a complaint by Fils-Aime, the Petitioner's employee was denied access to Respondent's premises to inspect Respondent's records on July 21, 1987. The request was made during reasonable business hours and within the business hours posted on the fence at Respondent's establishment. On August 31, 1987, Respondent sold a 1979 automobile to Gloria Little. Respondent did not apply for title for Ms. Little. She went to the tag agency herself because there was no one at Respondent's facility to go with her. She was unable to obtain the title transfer and contacted Petitioner's offices. A telephone call by Petitioner's employee resulted in an individual from Respondent's establishment being made available to assist and complete the title transaction on December 16, 1987. The Respondent did not apply for title transfer to a 1975 vehicle sold to Rafael Castillo on August 8, 1987. After being contacted by a Petitioner employee, Respondent applied for the title transfer on December 16, 1987. On December 29, 1987, Respondent sold a 1981 automobile to Kimberely DeNunzio. Title application to the vehicle was made in February, 1988, and issuance of the title to DeNunzio occurred February 24, 1988. The Petitioner's Order of Summary Suspension of Respondent's motor vehicle license was in effect at the time of this sale.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking Respondent's license and denying the application for renewal of same. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of July, 1988. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-5616, 88-2528 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS The Petitioner's proposed findings consisted of paragraphs erroneously numbered. Those paragraphs, 25 in number, have been properly numbered and are addressed as follows: 1-3. are included in findings 1-3, respectively. 4-7. are included in findings 12-18. 8-10. are included in finding 21. 11-13. included in finding 22. 14-16. included in finding 23. 17. included in finding 20. 18-19. included in finding 11. included in finding 6. included in finding 7. included in finding 8. 23-24. included in finding 9. 25. included in finding 10. RESPONDENT'S PROPOSED FINDINGS The Respondent's proposed findings were likewise erroneously numbered. Numbering has been corrected and the 36 paragraphs are addressed as follows. 1-3. included. 4-15. rejected, unnecessary to result reached. 16. included in finding 12. 17-18. included in finding 6. 19-27. rejected, unnecessary. 28-29. addressed in finding 5. rejected, on basis of credibility. included in finding 17. 32-36. rejected as unnecessary. COPIES FURNISHED: Michael J. Alderman, Esquire Assistant General Counsel State of Florida, Department of Highway Safety and Motor Vehicles Department of Legal Affairs Neil Kirkman Building Room A-432 Tallahassee, Florida 32399-0504 Seril L. Grossfeld, Esquire 408 South Andrews Avenue Suite 101 Fort Lauderdale, Florida 33301 Charles J. Brantley Director, Division of Motor Vehicles Room B439 Neil Kirkman Building Tallahassee, Florida 32399-0500 Enoch Jon Whitney, Esquire General Counsel Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
The Issue Was the amendment to Section 12B-5.01, Florida Administrative Code adopted on November 8, 1978, adopted in violation of the procedural requirements of Section 120.54, Florida Statutes? Is the amendment to Section 12B-5.01, Florida Administrative Code an invalid exercise of the Department's delegated legislative authority?
Findings Of Fact Miami Tiresoles, Inc. sells both new and retreaded tires for cars and trucks. The company also sells gasoline and diesel fuel. It is licensed by the Department as a dealer in special fuels. As far as this case is concerned special fuel is number 2 diesel oil. Unless an exemption is met each gallon of special fuel sold by MTS is taxed by the Department at a rate of 8 cents per gallon. The Department has given MTS a revised notice of proposed assessment of tax for the sale of special fuel in the amount of $4,551.88 plus a penalty of $455.48 and interest in the amount of $735.11 (through April 21, 1980). The tax figure on the assessment appears to reflect a typographical error. The Department's records (Exhibit A) indicate that for the period in question 2/ MTS sold 56,936 gallons of special fuel subject to tax according to the Department's interpretation of the law. If a tax at a rate of 8 cents per gallon is due, then the amount due should be $4,554.88 and not $4,551.88. The correct tax figure is reflected on the Department's work sheets but was probably misread when the figure was transferred to the revised Notice of Assessment issued on April 21, 1980. The foregoing assessment is based on MTS' invoices which reflect sales of special fuel to customers in amounts of more than 110 gallons at one time. Those sales were made to MTS customers who have filed with MTS a document called "Purchaser's Exemption Certificate". A typical example of such a certificate states: PURCHASER'S EXEMPTION CERTIFICATE The undersigned hereby certifies that the motor duel (sic) and/or special fuel pur- chased on 1-19-79 is for the following purpose as checked in the space provided. (X) Purchased for home, industrial, com- mercial, agricultural or marine purposes for consumption other than for the propul- sion of a motor vehicle. ( ) Purchased at bulk plant or terminal in volumes of not more than 110 gallons for delivery into a receptacle not connected to the fuel supply system of a motor vehicle for consumption other than for the pro- pulsion of a motor vehicle. Purchaser is aware that if this exemption if (sic) falsely claimed, or if this certi- ficate is not rescinded at the time he fails to quality (sic) for the exemption, he shall be liable for the taxes imposed under Chapter 206, F.S. Furthermore, by issuing this certificate the purchaser also certifies that he does not have any motor vehicles which use special fuel for propulsion. This certificate is to continue in force until revoked by written notice to MIAMI TIRESOLES, INC. Purchaser: Trade Name: A ACME SANDBLASTING, INC. Street Address: 9521 W. Oakmont Dr., Hialeah, Fla. 33015 BY: /s/ The industrial customers of MTS (that is those who have filed an exemption certificate) are engaged in the construction business. They use the diesel fuel to operate bulldozers, front-end loaders, back hoes, sandblasters and similar equipment. None of the fuel is used for the operation of motor vehicles on the public highways of Florida. All the fuel in question is sold on the premises of MTS. At the time of sale it is placed either in the fuel tank of a particular piece of equipment such as a back hoe, or it is placed in a fuel storage tank mounted on the back of a truck. The storage tanks are not connected so they can provide fuel for the propulsion of the truck. They are used to transport fuel to the purchaser's particular job site. The storage tanks have a capacity of between 100 to 300 gallons. MTS does not have delivery trucks of its own and has no facilities for taking fuel to its customers job sites. A single invoice of MTS which indicates a sale of 110 gallons of special fuel to an individual customer is frequently the result of a sale where multiple fuel tanks are filled at one time. For instance, the customer may have a back hoe sitting on the rear of a flat-bed truck. He will fill the fuel tank in his back hoe and then perhaps fill an additional 55 gallon drum or two which would be on the truck. This would occur all in one transaction. The reason why the Department seeks to tax special fuel sold by MTS to its industrial customers in an amount exceeding 110 gallons is because the fuel was placed in the customers' own fuel tanks on the premises of MTS and not on the premises of the customer or at the customer's job site. The amendment to Section 12B-5.01, Florida Administrative Code challenged by Petitioner here was adopted by the Governor and Cabinet, sitting as the head of the Department of Revenue, on November 8, 1978. No hearing was held on the amendment's adoption because no person requested one. Notice of the Department's intent to adopt the rule was given in the October 13, 1978 issue of the Florida Administrative Weekly. At the time the notice was published a copy of the amendment was available for inspection and copying by the public. The notice published in the Florida Administrative Weekly stated: DEPARTMENT OF REVENUE, DIVISION OF MISCELLANEOUS TAX, MOTOR FUEL TAX Rule 12B-5.01 TITLE: Specific Exemption PURPOSE AND EFFECT: To amend the rule which implements Subsection 206.87(4)(a) & (b), F.S. to clarify interpretation of the law. SUMMARY: Provides specifically the requirements necessary in order for the licensed dealer of special fuel to make an exempt sale for home, industrial, commercial, agricultural, or marine purposes and exempt sales of not more than 110 gallons at his place of business, and by cross reference, the records needed to be maintained by the licensed dealer to substantiate the sale. SPECIFIC LEGAL AUTHORITY UNDER WHICH THE ADOPTION IS AUTHORIZED AND THE LAW BEING IMPLEMENTED, INTERPRETED OR MADE SPECIFIC: SPECIFIC AUTHORITY: 206.14(1), 206.59, FS. LAW IMPLEMENTED: 206.87(4)(a)(b), FS. ESTIMATE OF ECONOMIC IMPACT ON ALL AFFECTED PERSONS: There will be no significant economic impact. IF REQUESTED, A HEARING WILL BE HELD AT: TIME: 10:00 A.M. PLACE: The New Capitol, Lower Level 3 DATE: November 9, 1978 A COPY OF THE PROPOSED RULE AND THE ECONOMIC IMPACT STATEMENT MAY BE OBTAINED BY WRITING TO: L. N. Thomas, Chief, Motor Fuel Tax Bureau, Department of Revenue, Carlton Building, Tallahassee, Florida 32304 Individual notices of the proposed rule making were not sent to licensed special fuel dealers in Florida. On October 10, 1978, the Department sent the following items to the Joint Administrative Procedures Committee: A copy of the proposed amendment to Rule l2B-5.01. The notice to appear in the Florida Administrative Weekly. The Economic Impact Statement. The "Summary and Justification Sheet" (apparently the Department's term for the facts and circumstances justifying the proposed rules). The following shows how the Department's amendment adopted on November 8, 1978, changed Section 12B-5.01, Florida Administrative Code. Words stricken were deleted; words underlined were added. 12B-5.01 Specific Exemptions. (1) - (2) - No change. HOMES, INDUSTRIAL. COMMERCIAL, AGRICULTURAL OR MARINE. Any sale of special fuel by a licensed dealer, regardless of quantity, when such fuel is to be consumed exclusively for home, industrial, commercial, agricultural, or marine purposes, is exempt from tax, provided the sale is made by a licensed dealer who delivers the fuel into the customer's storage facility, which must be located on the customer's premises, place of business, or job site. (Cross Reference - Rule 12B-5.03(1). (7)(b) - (6) - No change. (7) SALES OF 110 GALLONS OR LESS. A licensed dealer may deliver, at his place of business, tax free, not more than 110 gallons of special fuel to a person who is not a licensed dealer of special fuel, provided the fuel is placed into a receptacle which is furnished by the purchaser and which is not connected to the fuel supply system of a motor vehicle. (Cross Reference - Rule 12B-5.03(1), (7)(b) Any licensed dealer of special fuel who, at his place of business, delivers more than 110 gallons of special fuel to a person who is not a licensed dealer of special fuel, shall be liable for and shall pay to the state taxes, penalties and interest on the total quantity sold even though the fuel may not be ultimately used to propel a motor vehicle on the highway.
The Issue The issues for determination are whether the emergency suspension of Respondents' licenses was proper and whether revocation of those licenses is required.
Findings Of Fact Respondent Robinson, an authorized Chevron representative, is the sole proprietor of Jack A. Robinson, Distributor. Respondent R&R Partnership (R&R) is a partnership between Jack A. Robinson and Dee Ann Rich (Rich). Respondent I-10 Corporation (Stacks) is a subchapter S corporation in which Respondent Robinson is a 50 percent shareholder. Rich is the general manager of Jack A. Robinson, Distributor and exercises administrative responsibilities with regard to Respondents Stacks and R & R Corporation. Robinson holds Special Fuel Dealer's License No. 10 Wholesaler's License No. 09000950/9356 issued by Petitioner. Robinson sells diesel fuel and gasoline at wholesale to I unrelated parties. I products at retail. Robinson admits in response to Counts III, IV, VI, VII, VIII, IX, X, XI, XII, XVI, XIX, XXII, XXIII, XXIV, XXVII, and XXX, of the Notice To Show Cause in DOAH Case No. 93-1563 that $210,876.19 of tax remains due and owing. Rich is Jack A. Robinson's step supervising and preparing tax returns for Robinson. With regard to the $210,876.19 admitted as due and owing, these state funds were collected by Respondent Jack A. Robinson as an agent for the State of Florida but, instead of being remitted to the state, these funds were spent by Respondent in the course of business operation. DOAH Case No. 93-1563 In response to Counts I, II, V, XV, XVII, XXI, XVI, XXVIII, and XXIX of the Notice To Show Cause in DOAH Case No. 93 that $103,452.71 tax is due. As to Count I, the balance for the tax return period of February 1990, for motor fuel tax due is $2,524.14. In regard to Count II, Respondent also owes motor fuel tax in the amount of $26,839.71 for the tax return period of March, 1990. Although Rich requested Respondent's bank to make the appropriate electronic funds transfer to Petitioner, the amount was not received by Petitioner and no explanation was provided by Respondent for the failure of Petitioner to receive this amount. As to Count V, Respondent owes a total motor fuel tax of $12,900.27. The previous total of $36,232.69 was reduced by a late partial payment of $11,562.53, and an additional payment of $11,769.87 on September 25, 1991. No payment of tax was made for the period of March 1992. As to Count XIV, Respondent Robinson filed a tax return for January 1993, motor fuel local option tax in the month of February 1993. The return showed a total tax due of $21,044.62. A collection allowance of $148.56 is shown deducted. No proof of payment of the tax was presented. In regard to Count XVII, a return for the tax period of March 1990, was filed on behalf of Respondent Robinson, declaring a total special fuel tax due of $23,572.82. No evidence was presented that payment was actually made, although Rich testified that a wire transfer payment of that amount was requested by Respondent. With regard to Respondent Robinson, the amounts of tax admitted in responsive pleading together with all counts of the Notice To Show Cause where no evidence or allegation of payment was presented total: Admitted in pleading $210,876.19 Admitted owing for March of 1990 in Motor Fuel and Special Fuel Tax $ 50,412.53 Copies of Returns introduced and alleged to have been filed, but unsupported by Petitioner's records and otherwise unsubstan- tiated by proof (for August of 1992 and January of 1993). $ 35,655.06 No proof of payment presented for balance of November of 1990 tax. $ 12,900.27 Admitted, paid less than due for January 1990; August 1990; and November, 1990. $ 8,058.52 This amount does not include applicable penalties and interest. DOAH Case No. 93-1565 Counts I through IV are admitted by Respondent R & R Partnership as to the amounts owned for a total tax due of $9,189.12. This amount does not include applicable penalties and accrued interest. While R & R reported taxes due on Respondent Robinson's returns, no proof was submitted that these taxes were paid to Petitioner. For the tax period of January, 1993, Rich maintained that a return was filed on behalf of R & R partnership and payment made. However, the copy of the payment check presented at hearing had "2/93" written in pencil as the date of the check and no evidence was presented that the check was presented for payment to Respondent's bank. DOAH CASE NO. 93-1564 With regard to I allegations of Counts I, II, III, IV, V, VII, VIII, X, XI, and XII. As to Counts VI and IX, Respondent denies only that there was improper reporting, not that the amount of tax is not due. Respondent maintains that all taxes collected by Stacks were paid to Respondent Robinson and reported on those returns. The periods of January 1990; February 1990; March 1990; April 1990; August 1990; November 1990; February 1992; correspond to the counts of the Notice To Show Cause to which Stacks denies all allegations. These periods and denied counts match precisely with periods in Counts IX, X, XI, XII, XV, XVI, XVII, XVIII, XIX, XX, XXI, XXII, of the Notice To Show Cause filed against Respondent Robinson. Robinson admits Counts IX, X, XI, XII, XVI, XVII, XIX, XX, and XXII and presented no proof of payment at hearing with regard to Count XV and XVII. This fact, coupled with testimony that Stacks and R & R taxes were paid to Robinson and reported as line items on his returns, show that Stacks does owe the taxes claimed by Petitioner in the amount of $36,029.45 exclusive of interest and penalties. Debra Swift, a Certified Public Accountant, employed by Petitioner, personally reviewed records of Petitioner in determining the amounts of tax, penalty and interest due from each Respondent. All payments received by Petitioner were credited by Swift in performing her calculations.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered revoking the fuel licenses of all three Respondents. DONE AND ENTERED this 13th day of May, 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 May, 1993. APPENDIX The following constitutes my rulings pursuant to Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings: 1.-12. Adopted, though not verbatim. 13.-15. Accepted. 16.-22. Accepted. Respondent's Proposed Findings: 1. Rejected, no record citation. 2.-3. Adopted. 4. Accepted, except for last sentence which is rejected as legal conclusion. 5.-7. Adopted. 8.-9. Rejected, subordinate to HO findings on this point. 10.-12. Rejected, weight of the evidence. 13. Rejected, relevancy. 14.-16. Rejected, subordinate to HO findings. 17. Adopted by reference. 18.-21. Rejected, subordinate to HO findings. 22.-24. Rejected, weight of the evidence, no citation. 25._38. Rejected, subordinate to HO findings. 39.-40. Rejected, weight of the evidence. 41.-42. Adopted by reference. 43.-44. Rejected, subordinate, misconstruction of testimony. 45. Rejected, conclusion of law, weight of the evidence. 46.-48. Rejected, subordinate, argumentative, relevancy. COPIES FURNISHED: Lealand L. McCharen Assistant Attorney General Department of Legal Affairs The Capitol-Tax Section Tallahassee, FL 32399-1050 Timothy J. Warfel Messer, Vickers Suite 701 First Florida Bank Building 215 South Monroe Street Post Office Box 1878 Tallahassee, FL 32302 Linda Lettera General Counsel 204 Carlton Building Tallahassee, FL 32399-0100 Larry Fuchs Executive Director 104 Carlton Building Tallahassee, FL 32399-0100
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: In late 1990, Robert Sayre filed with Respondent an application for an independent motor vehicle dealer license authorizing him to do business as TNT Auto Sales at 2050 N.W. 36th Street in Miami, Florida. At the time, Sayre leased the location of his proposed business from James Philips. 1/ Sayre no longer holds a leasehold interest in the property. The property is now owned by Teobaldo Cabrera, who is leasing it to Fiory Motors, Inc. Fiory Motors, Inc., has a current license from Respondent to operate as an independent motor vehicle dealer on the property.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Highway Safety and Motor Vehicles enter a final order denying Petitioner's application for an independent motor vehicle dealer license on the ground that he neither owns nor leases the property identified in the application as "the exact location of [his proposed] place of business." DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11 day of September, 1992. STUART M. LERNER 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 11 day of September, 1992.
