Findings Of Fact On March 22, 1977 during a routine inspection of various service stations in Vero Beach, a sample of No. 2 diesel fuel was taken from the pump at English Brothers Truck Stop. Upon analysis at the mobile laboratory the sample was found to be below the minimum flash point for No. 2 diesel fuel and the inspector returned to the station the same day and issued a stop sale notice. (Exhibit 3). Three additional samples were taken, and when analyzed they too were found to be below minimum flash point for this type fuel. Upon receipt of the stop sale notice the station manager notified Respondent. After the fuel had been analyzed at the state laboratory Respondent was notified that since the retail value of the contaminated fuel exceeded $1,000 it could pay $1,000 in lieu of having the fuel confiscated. Respondent owns the fuel at English Brothers Truck Stop until such time as the fuel is removed through the pump for sale. Upon receipt of the notice of the contaminated fuel, which was in one 4,000 gallon tank, Respondent immediately sent three employees to remove the contaminated fuel and clean the tank. Thereafter Respondent attempted to locate the source of the contamination but without success. Since the flash point was lower than allowed for diesel fuel the most likely source of contamination was gasoline which is a higher priced fuel than diesel. Standards used by the Petitioner in determining the required characteristics of fuels are those prescribed by the ASTM. Respondent distributes some 750,000 gallons of diesel fuel per month and this is the first report of contamination of its fuel in the eight and one half years Respondent has been in business.
The Issue The issue is whether Mr. Hill, as a certified general contractor, is guilty of gross negligence or misconduct in the practice of contracting, and of failing to discharge his supervisory duty as a qualifying agent by qualifying the firm Gulfstream Shutter and Improvement Corp. when he was not actively involved in the operation of that firm, but merely obtained permits for the firm's work.
Findings Of Fact Robert C. Hill is a certified general contractor and holds license CG C028519. Mr. Hill had been hired as one of four or five salesmen for Gulfstream Shutter and Improvement Corp. by its owner, Eugene Weiner. That company sold rolldown, accordion, panel, and awning metal shutters. Gulfstream acted as a procuring agent for Seaview Manufacturing, Inc., which fabricated and installed the shutters. A homeowner who wanted shutters would contact a salesman for Gulfstream Shutter and Improvement Corp. The salesman would measure the area to be covered for the purpose of estimating a price and give the homeowner a price. If the price was accepted, the shutters would be ordered from Seaview Manufacturing through a purchase order. Engineers from Seaview would then visit the property again to take exact measurements for fabrication, and Seaview would install the shutters. After the homeowner accepted the installation, the homeowner would pay for the shutters. Payment usually had been financed, and upon acceptance by the homeowner, the financing entity would release the proceeds of the home improvement loan which would be paid to Seaview for the product, and to Gulfstream for its sales commission. The average job sold by Gulfstream Shutter and Improvement Corp. was about $2,400 per home. Because of the way in which the sales transactions for shutters were structured, the only party which had any contractual relationship with the homeowner was Gulfstream Shutter and Improvement Corp. Mr. Hill was also able to handle work in addition to shutters, such as window replacements, because he had a contracting license. About 85 to 90 percent of Gulfstream's business was shutters and 5 percent windows or other work. The owner of Gulfstream Shutter and Improvement Corp. assumed that Seaview Manufacturing, which had been in the business of fabricating and installing shutters for more than 30 years, obtained any permits that were needed for the installation of the shutters. In fact, no permits were obtained by Seaview, Gulfstream, or Mr. Hill for those installations. Mr. Hill agreed to become qualifying agent for Gulfstream Shutter and Improvement Corp. so that he could pull permits for spin-off jobs he obtained for window work or other small remodeling jobs, such as porches, which arose in connection with contracts for awning work he obtained. Gulfstream had no other qualifying agent. This qualification took place in August 1985. When Mr. Hill qualified as the agent for Gulfstream Shutter and Import Corp., he had no oversight of the finances of the company or supervision over the shutter fabrication or installation performed by Seaview Manufacturing on contracts procured by Gulfstream's salesmen. Eventually, Mr. Hill left Gulfstream Shutter and Improvement Corp., and began his own business, Contractors Marketing, which he qualified with the Department of Professional Regulation.
Recommendation It is therefore recommended that a final order be entered finding Mr. Hill guilty of violating Section 489.119(2), Florida Statutes (1985), which make out a violation of Section 489.129(1)(j), Florida Statutes (1985), and that he be fined $250. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of April, 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1988. COPIES FURNISHED: David L. Swanson, Esquire Robert C. Hill Department of Professional 5766 Northeast 15th Avenue Regulation Ft. Lauderdale, Florida 33334 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely William O'Neil, Esquire Executive Director General Counsel Department of Professional Department of Professional Regulation Regulation Post Office Box 2 130 North Monroe Street Jacksonville, Florida 32201 Tallahassee, Florida 32399
Findings Of Fact Petitioner is a dealer in liquefied petroleum gas (LPG), duly licensed in Florida. Petitioner buys LPG in Florida and resells it to dealers who in turn sell most of it at retail, but use part of it as fuel for their trucks. During the period July 1, 1975, through February 28, 1977, neither petitioner nor any of its customers paid any tax on account of petitioner's sales of LPG, other than LPG used by its customers to propel trucks. Petitioner's customers kept records as to how much LPG was sold by them for home cooking or heating use by their customers, the ultimate consumers. Until the summer of 1977, petitioner's customers who used LPG as truck fuel kept records of how far the trucks so fueled were driven. Using the resulting mileage figure, they calculated the amount of LPG that had been used as truck fuel. Until the summer of 1977, petitioner collected from its customers a tax of eight cents ($.08) per gallon on LPG used as truck fuel. During the period from July 1, 1975, through February 28, 1977, none of petitioner's Florida customers held Florida dealer's licenses, except Gene Lewis Auto Brokers, which obtained a license as a special fuel dealer in August of 1976. Also in August of 1976, Gene Lewis Auto Brokers purchased 2,052 gallons of LPG from petitioner, on which no tax was paid. Thereafter, the same customer bought 41,011 gallons from petitioner in the period ending February, 1977, on which no tax was paid. Petitioner made tax returns monthly, using forms furnished by respondent. With respect to respondent's Form DR-115-F, styled "Special Fuel Sold . . . Within the State to Licensed Dealers Tax-Free," general instructions furnished to petitioner by respondent provided: To be used in support of claims for exemp- tion ... for sales ... to other licensed dealers. Signed resale certificates ... which bear the name and address of the pur- chaser and the number of his dealer's license are required to be retained in the seller's permanent file .... Petitioner's exhibit No. 2. (emphasis supplied) Monthly, petitioner listed on Form DR-115-F the amounts of LPG sold to its Florida customers, less amounts its Florida customers advised had been used to propel trucks. On another form furnished by respondent, Form DR-115-J, petitioner listed monthly, by county, the LPG used by its Florida customers to propel motor vehicles and on which petitioner had collected tax at the rate of eight cents ($.08) per gallon. At the time petitioner filed its monthly tax return, it forwarded to respondent the taxes it had collected from its Florida customers. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which appears as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent's assessment be upheld with respect to petitioner's tax deficiency, except for the portion attributable to sales by petitioner to Gene Lewis Auto Brokers after August of 1976, being three thousand two hundred eighty and eighty-eight hundredths dollars ($3,280.88). That interest and penalty be adjusted accordingly. DONE and ENTERED this 8th day of March, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. John Radey, Esquire Holland & Knight Post Office Drawer 810 Tallahassee, Florida 32302 Mr. Cecil L. Davis, Jr., Esquire Assistant Attorney General The Capitol, Room LL04 Tallahassee, Florida 32304 APPENDIX Paragraph one of petitioner's proposed findings of fact has been adopted, in substance, except that the evidence did not show that petitioner's customers used LPG for home heating or cooking, only that persons to whom petitioner's customers sold used the LPG in this fashion. Paragraph two of petitioner's proposed findings of fact has been adopted in substance. Paragraph three of petitioner's proposed findings of fact has been adopted in large part. The gist of the information supplied to petitioner by its dealers was that LPG not used by them would be resold to domestic users. Although respondent did not undertake to determine whether petitioner listed the same LPG as taxable and as tax-exempt on the same tax return, there is no reason to believe that petitioner did so. Paragraph four of petitioner's proposed findings of fact has been adopted, in substance, except that petitioner's tax returns were inaccurate as to its customers' status as dealers. The final three paragraphs of petitioner's proposed findings of fact accurately reflect evidence adduced at the hearing, but are not relevant to a decision of this controversy.
Findings Of Fact The Petitioner was acquired by Mr. Farish in November 1985. The Petitioner is a Georgia corporation. In December 1985, the Petitioner bid on a federal contract to provide fuel to federal installations in the southeastern United States. The Petitioner was awarded a contract to provide fuel oil for off-road use at Patrick Air Force Base, which is located in Florida. The Petitioner requested an application from the Department of Revenue for a special fuel license. The Petitioner was sent a motor fuel license application instead of a special fuel license application. The Petitioner filed the motor fuel license application with the Department of Revenue. The Petitioner subsequently filed a special fuel license application. It was received and validated by the Department of Revenue on June 24, 1986. The Petitioner was informed on July 9, 1986, that in order to receive the license, the Petitioner needed to file a copy of a certification to do business in Florida, which could be obtained from the Secretary of State's office. On or about January 9, 1987, the Petitioner forwarded to the Department of Revenue the certification from the Secretary of State's office needed to complete the Petitioner's license application. The Petitioner's special fuel license was issued and became effective January 9, 1987. The Petitioner began purchasing and selling special fuel in Florida on or about April 1, 1986. Between April 1, 1986 and January 9, 1987, the Petitioner paid $7,995.86 in Florida fuel tax liability for purchases of special fuel in Florida. On or about February 25, 1987, the Petitioner filed an application for special fuel tax refund in the amount of $7,995.86. The Respondent denied the tax refund application filed by the Petitioner by Order dated March 18, 1987.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order denying the Petitioner's application for refund be issued by the Respondent. DONE and ENTERED this 18th day of August, 1987, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August 1989. APPENDIX TO RECOMMENDED ORDER CASE No. 87-1641 Only the Respondent filed a proposed Recommended Order containing proposed findings of fact. The Respondent failed to number its proposed findings of fact. The Respondent has, however, only proposed essentially 3 proposed findings of fact: that the Respondent denied the Petitioner's claim for refund and the justification therefore, the Petitioner made four admissions and the Petitioner is a Georgia corporation. The Respondent's first proposed finding of fact has been accepted in paragraph 12, the second proposed finding of fact has been accepted in paragraphs 6-8 and the third proposed finding of fact has been accepted in paragraph 1. COPIES FURNISHED: Honorable Gerald Lewis, Comptroller Department of Banking and Finance The Capitol Tallahassee, Florida 32399-0305 James E. Farish, Jr. President Lincoln Oil Co., Inc. Post Office Box 2904 Gainesville, Georgia 30503-0294 Edwin A. Bayo, Esquire Assistant Attorney General Department of Legal Affairs Tax Section The Capitol Tallahassee, Florida 32399-1050
The Issue Whether Petitioner’s transactions regarding capital purchases and improvements, gift shop lease payments, concessionaire revenues, purported office lease payments, and 11 gaming equipment (leased and purchased) are subject to Florida sales or use tax during the audit period and whether Petitioner is entitled to the resale exemption for food purchased and provided to its customers during the audit period. Finding of Fact 46 During the audit period, the Petitioner sold tickets to its cruises generally for $25 (most cruises) and $30 (weekend, evening, and Sunday brunch cruises). In general, the cost of its food during the audit period was $7.50 per passenger. It is undisputed that the petitioner did not pay sales tax on the food it purchased for later consumption by its passengers. Finding of Fact 92 During the audit period Mr. Genden requested, but could not receive, records pertaining to register tapes and ship documents that would show how and when the registers were opened and closed, and ship policies concerning when registers were opened and closed. The requested records had been destroyed by the inadvertent activation of the Vessel’s sprinkler system. The Recommended Order, subject to the modifications stated above, is adopted and attached below. 12 DONE AND ENTERED in Tallahassee, Leon County, Florida this_ 244 day of November, 2001 STATE OF FLORIDA DEPARTMENT OF REVENUE < Zingge xecutive Direct, Certificate of Filing J HEREBY CERTIFY that the foregoing FINAL ORDER has been filed in the official records of the Department of Revenue this day of 1 nueeben >, 2001. wit : 4 Al FENCY CLERK Copies furnished to: Kenneth M. Hart, Esquire Nicole M. Nugan, Esquire Gunster, Yoakley & Stewart, P.A. 777 South Flagler Drive, Suite 500, East Tower, West Palm Beach, Florida 33401 William L. Hyde, Esquire Gunster, Yoakley & Stewart, P.A, 215 South Monroe Street, Suite 830 Tallahassee, Florida 32301 13
Conclusions This cause came before the Department of Revenue for the purpose of issuing a final order. The Administrative Law Judge assigned by the Division of Administrative Hearings issued a Recommended Order, sustaining the Department’s assessment. A copy of the Recommended Order is attached to this Final Order. Petitioner timely filed exceptions to the Recommended Order and a copy of that filing is attached to this Final Order. For the reasons expressed herein, the Department adopts the Administrative Law Judge recommendations and specifically incorporates the Recommended Order except for Finding of Facts 46 and 92, which are modified as reflected below. Rulings on Petitioner’s exceptions are also set forth below. Petitioner’s Exception to Finding of Fact 17 Petitioner asserts that it is a misrepresentation that its ship, the Palm Beach Princess (the Vessel), travels “just far enough” to engage in gambling activities without violating state laws. Petitioner further avers that its Captain, Hrovj Michl, testified that the Vessel “travels into international waters on each of its cruises.” The Record clearly indicates that the Vessel travels exactly three miles out from port on each of its cruises-to-nowhere, whereupon gambling activities commence for a period lasting until preparations are made for the Vessel’s return to port. During gambling activities the Captain stems the tide at a point three miles off shore, which is exactly beyond the extent of Florida’s territorial waters. As per Presidential Proclamation No. 5928, Dec. 24, 1988, the Territorial Limits of the United States extend 12 miles from shore, whereupon international waters commence. Therefore, based upon testimony provided by Petitioner’s own witness, the Vessel travels just far enough to leave Florida’s territorial waters, but remains 9 miles inside of the territorial limits of the United States. Petitioner, at the hearing or in its exceptions, provides no contrary authority that expressly contradicts Presidential Proclamation 5928. As such, the Administrative Law Judge’s finding stands. Petitioner’s exception to Finding of Fact 17 is hereby rejected. Petitioner’s Exception to Finding of Fact 39 Petitioner asserts that it misstates the facts to find that “[t]he sole source of the Petitioner’s income during the audit period was in connection with business conducted in the U.S.” The Petitioner further claims that “Section 863(c) of the Internal Revenue Code contains a per se rule that treats [Petitioner’s] transportation income as derived from sources within the United States" even when Petitioner was engaged in foreign commerce. Petitioner deems that “compliance with an income source tule in the Internal Revenue Code [should not be] determinative of whether [Petitioner] is engaged in foreign commerce. The Record clearly indicates that Petitioner’s federal tax returns show income derived from a business conducted in the United States. The Record also indicates that Petitioner maintained an office located within the State of Florida, it exclusively operated its Vessel from a port within the State of Florida, and, as discussed in the preceding Exception, its Vessel never traveled into international waters or the territorial waters of any other state. With no connection to any other taxing authority within the United States and with no evidence of commerce conducted with a foreign entity, Petitioner's argument must fail as it concerns this Finding of Fact. Petitioner’s exception to Finding of Fact 39 is hereby rejected. Petitioner’s Exception to Finding of Fact 41 Petitioner asserts that its Vessel is engaged in foreign commerce because the Vessel travels, with passengers aboard, to a point slightly more that 3 miles off the coast of Florida. Section 1331 of Title 43 of the United States Code state that the “territorial sea of the United States henceforth extends to 12 nautical miles from the baselines of the United States determined in accordance with international law.” Because Petitioner’s Vessel travels only 3 miles offshore, the Vessel never reaches international waters. Additionally, to be engaged in commerce in the manner in which the Petitioner contends it occurs, Petitioner needs to “transport” passengers or property from one point to another. The Record clearly indicates the Vessel leaves from port and returns to the same port with no intervening stops. Thus, Petitioner’s claim fails on this point as well. Petitioner’s exception to Finding of Fact 41 is hereby rejected. Petitioner’s Exception to Finding of Facts 86, 90, and 99 Petitioner excepts to the finding “that at all times material to the audit period, [Petitioner] maintained an office in Boca Raton, Florida.” Petitioner further avers that payments for the office space were in the form of “advances for payments due under a management agreement between [Petitioner] and [its management company].” These contentions are without merit as the Record is replete with sufficient, competent documentary evidence substantiating the existence of Petitioner’s Boca Raton office and the manner in which rent payments were made is immaterial to that finding. Petitioner’s exceptions to Finding of Facts 86, 90, and 99 are hereby rejected. Petitioner's Exception to Finding of Facts 87 and 89 Petitioner excepts to the findings that sales tax is due on photography and gift shop licenses and on its lease of gambling equipment. Petitioner bases its entitlement to an exemption on the claim that all of its resulting income “is attributable to the transportation of persons or property in foreign commerce under § 212.08, Florida Statutes... .” As discussed in Petitioner’s Exception to Finding of Fact 41, Petitioner does not engage in foreign commerce as described in under § 212.08, Florida Statutes, therefore Petitioner’s argument on these points fails. Petitioner’s exceptions to Finding of Facts 87 and 89 are hereby rejected. Petitioner’s Exception to Finding of Fact 88 Petitioner claims it is entitled to an exemption for the cost of food used in preparing the buffet meal served on its Vessel. In support of this contention, Petitioner points to Finding of Fact 46, which states: “[I]t is undisputed that the Petitioner did not pay sales tax on the food it purchased for resale to its passengers.” This claimed exemption would be properly granted if Petitioner’s purchase of food was indeed for “resale.” The Record, however, clearly shows that admission to Petitioner’s Vessel comes in the form of a lump-sum charge, which entitles patrons to all amenities offered on board the Vessel to include food, gambling, and other related services. The Administrative Law Judge in Paragraphs 44 and 45 of her Recommended Order discusses these facts. Since the Petitioner is providing a taxable admission, and since the cost of all goods and services, including meals, is included with that admission, Petitioner can not claim in this instance to be providing food for resale. Petitioner’s exception to Finding of Fact 88 is hereby rejected and Finding of Fact 46 is modified to accurately portray the character of Petitioner’s food purchase. Petitioner’s Exception to Finding of Fact 92 Finding of Fact 92 reads that the Department requested, but did not receive, certain records during the conduct of the Department’s audit. Petitioner, in its exception, acknowledges that the records were not provided, but adds that the requested records had been inadvertently destroyed by the ship’s water sprinkler system. Although the Finding of Fact makes no allegation of inappropriate or non-compliant behavior on the part of the Petitioner, there exists sufficient evidence in the Record detailing Petitioner’s cooperation during the audit process to warrant modification of this Finding of Fact. Petitioner’s exception to Finding of Fact 92 is hereby accepted in part and the Finding of Fact will be modified to reflect the reason for Petitioner’s non-production of tecords. Petitioner’s Exception to Finding of Facts 93 - 97 Petitioner’s objections to the Findings in Paragraphs 93 — 97 revolve around the contention that if one were to concede that the Vessel “‘stems the tide” on its cruises to nowhere [this could be] fundamentally inconsistent with the conclusion that the [Vessel] travels 34 miles during such voyages.” Petitioner avers that the Administrative Law Judge failed to consider contrary testimony and appears to have given substantial weight to the fact that Petitioner did not contest mileage figures until the time of the hearing. Petitioner also objects that “the determination of the mil[eJage traveled on a cruise to nowhere in this case should not have been based on determinations made prior to the instant proceeding, but should have been based solely upon the evidence in the record.” During testimony at his deposition and again while testifying at trial, Petitioner’s witness, Captain Hrvoj Michl, consistently confirmed the accuracy of the voyage reports offered into evidence at the hearing. These records clearly support the Department’s reliance upon the figure used to calculate portions of the assessment at issue and are at variance with the mileage proffered by the Petitioner in its Exceptions. The voyage reports clearly and consistently document that the Vessel traveled in excess of 30 miles on each of its cruises-to-nowhere. Petitioner’s exceptions to Finding of Facts 93 — 97 are hereby rejected. Petitioner’s Exception to Finding of Fact 93 Petitioner specifically objects the finding that the Department’s auditor relied on a mileage figure he received from on of the Petitioner’s ship captains during a telephone conference call arranged by Petitioner’s vice president. Petitioner, however, failed to produce the vice president [who was the only other participant in this conversation] at the hearing to contest the auditor’s claim. Additionally, as discussed in the preceding paragraph, there exists substantial evidence in the Record supporting the veracity of the auditor’s claim and his subsequent reliance on the mileage figure. Petitioner’s exception to Finding of Fact 93 is hereby rejected. Petitioner’s Exception to Finding of Fact 94 Petitioner specifically claims that there is nothing in the Record to substantiate that “records associated with the mileage issue were not reviewed further because the auditor did not realize the figure would be later disputed.” As recorded on Pages 48 and 49 of the hearing transcript, the department’s auditor testified that he first heard of the mileage figure during a meeting with one of the Petitioner’s executives. The auditor added that he subsequently viewed voyage records, prepared by the Petitioner’s captain, which supported this figure. Also, in answer to a direct question, the auditor testified that none of Petitioner’s employees disputed this figure while the audit work was being performed. These finding are consistent with the department’s tax conferee’s recollection, found on Pages 78 — 79, that no one from the Petitioner’s company raised an issue as to the mileage figure used. Based upon this testimony alone, there is substantial evidence supporting the Administrative Law Judge’s finding on this issue. Petitioner’s exception to Finding of Fact 94 is hereby rejected. Petitioner’s Exception to Finding of Fact 96 Petitioner, once again, excepts to the finding regarding the mileage figure produced at the Hearing. As previously discussed, the Administrative Law Judge correctly based this finding on figures produced by the Petitioner in Petitioner’s Voyage Report, and the accuracy of this report was verified by Petitioner’s witness under sworn testimony. Petitioner’s exception to Finding of Fact 96 is hereby rejected. Petitioner’s Exception to Finding of Facts 97 and 98 In addition to other exceptions already presented and analyzed in this Final Order, Petitioner argues that it “did not become aware of the DOR auditor’s erroneous conclusion regarding the correct travel distance of each voyage until the discovery process in the DOAH hearing.” In a Joint Pre-Hearing Stipulation files by the parties, it was agreed that the Department of Revenue issued a Notice of Proposed Assessment in this matter on March 12, 1999. The Department also issued a Notice of Decision pertaining to the assessment on June 12, 2000. The assessed amounts were based on the 34-mile figure in both instances, and both events preceded the complaint that initiated this DOAH proceeding. As evidenced by the information presented at the Hearing, evidence that verified the auditor’s use of the mileage figure, there exists sufficient documentation to support the Administrative Law Judge’s Finding of Fact. Petitioner’s exception to Finding of Facts 97 and 98 are hereby rejected. Petitioner’s Exception to Conclusion of Law 101 Petitioner argues that it has met its burden in proving that the assessment is incorrect. For reasons set forth in the Department’s responses to Petitioner’s Exceptions, and based upon the findings in the Administrative Law Judge’s Recommended Order, it is determined that there is ample documented evidence in this Record to refute Petitioner’s claim. Petitioner’s exception to Conclusion of Law 101 is hereby rejected. Petitioner’s Exceptions to Conclusion of Law 116 and 118 Petitioner iterates the exceptions that were discussed in its Exceptions to Finding of Facts 17, 41, 87, and 89. The analysis previously provided supports the Administrative Law Judge’s findings in these instances as well. Petitioner’s exceptions to Conclusions of Law 116 and 118 are hereby rejected. Petitioner’s Exceptions to Conclusions of Law 120, 123, 124, 129 and 132 Petitioner excepts to the conclusion that it exercised control over tangible personal property in Florida and it restates its claim that certain assessed items were non- taxable because of their use “in the stream of foreign commerce.” For reasons cited earlier, Petitioner’s claim of engaging in foreign comrnerce while conducting cruises-to-nowhere is rejected. The Record also contains substantial documented evidence to support the Department’s contention that Petitioner exercised control over tangible personal property while the Vessel was docked in Florida. Also, in recognition of this country’s 12-mile territorial limit, Petitioner’s claim for proration of the miles traveled beyond Florida’s 3-mile is deemed inappropriate as it misidentifies the starting point of international waters. Petitioner’s exception to Conclusions of Law 120, 123, 124, 129 and 132 are hereby rejected. Petitioner’s Exceptions to Conclusions of Law 126 and 127 Petitioner’s claim of entitlement to a resale food exemption is based on the proposition that the meal consumed by its passengers is “an essential element of the entertainment package purchased....” The Administrative Law Judge, having toured the ship, and having been briefed by both parties as to the applicable case law on this subject, considered this argument and rejected it. In review, the evidence supports this determination. Petitioner’s exceptions to Conclusion of Law 126 and 127 are hereby rejected. Petitioner’s Exceptions to Conclusions of Law 131 Petitioner reargues its contention that it did not lease or rent office space in Florida and it adds, that if it were deemed to have rented office space, “[it] is entitled to 10 credit for the sales tax [that] has already been paid....” As previously discussed, the Administrative Law Judge made her findings of fact and conclusions of law based upon competent and substantial evidence. In this conclusion, the Administrative Law Judge states, “[t]he Petitioner is responsible for the sales tax that was not paid during the period of its occupancy of the real property....” (Emphasis supplied) The matter of whether Petitioner is, or is not, entitled to a credit is not at issue, nor is there any finding or conclusion that would prevent Petitioner from seeking a refund or credit through proper legal means. As such, Petitioner’s exception falls outside the scope of this Conclusion. Petitioner’s exception to Conclusion of Law 131 is hereby rejected. Adoption and Modification of the Recommended Order The Statement of the Issues is modified as set forth below to more accurately reflect the issues addressed by the Administrative Law Judge. The Preliminary Statement as set forth in the Administrative Law Judge’s Recommended Order is adopted in its entirety. The Department adopts and incorporates the Findings of Fact set forth in paragraphs 1 through 45, 47 through 91, and 93 through 99 of the Recommended Order. Findings of Fact 46 and 92 are modified as presented below. The Department also adopts and incorporates Conclusions of Law set forth in paragraphs 100 through 132 of the Recommended Order.
The Issue This is a license discipline case in which Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged unlawful sale of an alcoholic beverage and cigarettes to a minor.
Findings Of Fact At all times relevant and material to this proceeding, the Respondent held license number 23-12104, series 2-APS, authorizing it to sell alcoholic beverages on the premises of New Hialeah Supermarket, located at 3201 East 4th Avenue, Hialeah, Dade County, Florida (hereinafter "the licensed premises"). Aleya Ribhi Maali (hereinafter "Maali") is the sole corporate officer and shareholder of the respondent corporation. On September 24, 1996, Special Agents Spayd, Smith, and Delmonte conducted random tests of alcoholic beverage licensees' compliance with laws prohibiting the sale of alcoholic beverages to persons under the age of 21 and tobacco to persons under the age of 18. On September 24, 1996, Investigative Aide C. R.2 entered the licensed premises in furtherance of the above referenced investigation. C. R.'s date of birth is August 15, 1979. She was 17 years of age at all times relevant to these proceedings. C. R. selected a can of Budweiser beer from the back of the store. She then approached Maali at the cash register counter and asked her for a pack of Marlboro cigarettes. Maali handed C. R. the pack of cigarettes which she had retrieved from the display behind the register counter. Respondent proceeded to sell C. R. the can of Budweiser beer and the Marlboro cigarettes. Maali did not request to see any identification as proof of legal age, nor did she ask C. R. her age. Maali was questioned by Agents Delmonte and Smith. Maali admitted that she had not been paying attention to what she had been doing. She said that she had been working in the store since 8:00 a.m. At the formal hearing she testified that the sale to C. R. was a consequence of being tired and confused because of the long work day. She testified that at the time of the sale she had been thinking about going home to make dinner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered in this case concluding that the Respondent is guilty of the two unlawful sales charged and imposing a penalty consisting of a 7-day license suspension and administrative fines in the total amount of $1,500.00 DONE AND ENTERED this 14th day of May, 1997, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1997.
