The Issue The issue in this case is whether consumer certificates of exemption previously issued by the Department of Revenue to Iberia Lineas Aereas de Espana, S.A., should be revoked.
Findings Of Fact Iberia is a foreign air carrier owned and controlled by the government of Spain. Iberia is an agency or instrumentality of the government of Spain. Iberia is not an agency or instrumentality of the United States Government, nor is it an agency or instrumentality of any of the states of the United States or of any county, municipality, or political subdivision of any such state. Iberia operates flights to and from several states of the United States, including Florida. Iberia purchases items for use within Florida. The Department of Revenue is the agency of the State of Florida which is authorized to administer the collection of taxes and the issuance of consumer certificates of exemption pursuant to Chapter 212, Florida Statutes. The two consumer certificates of exemption at issue in this proceeding were issued to Iberia by the Department on September 21, 1990. Both have an expiration date of September 21, 1995. 5/ One of the subject certificates indicates that Iberia is exempt as a "Federal" organization. The other indicates that Iberia is exempt as a "Government" organization. The Department has continuously treated Iberia as an exempt organization since at least September 3, 1975, when the Department issued Iberia's first consumer certificate of exemption. That certificate indicated that Iberia was considered a "Federal" organization. Iberia has never received any express representations from the Department as to its future entitlement to a consumer certificate of exemption. All of the consumer certificates of exemption issued to Iberia have been issued as a result of some form of mistake or misunderstanding by functionaries of the Department, because Iberia has never been eligible for a consumer certificate of exemption under the provisions of Chapter 212, Florida Statutes. 6/ No other foreign airline or foreign air carrier currently holds a consumer certificate of exemption issued by the Department.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Revenue issue a Final Order in this case revoking each of the consumer certificates of exemption previously issued to Iberia. DONE AND ENTERED this 11th day of October, 1996, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1996.
Findings Of Fact Forbes, Walsh & Kelly is a New York corporation licensed to deal in securities under the laws of New York. The company through its secretary, Mr. Robert E. Kelly, contacted the Division of Securities on March 2 and 21, 1979 concerning the procedure for registering to be a securities dealer in Florida. After receiving the appropriate application forms and a copy of the relevant Florida Statutes, Forbes, Walsh & Kelly filed its application on March 26, 1979, to be licensed in Florida as a securities dealer. On April 2, 1979, FWK was notified that its application as a dealer was being held in abeyance, pending receipt of the corporate by-laws, a branch office application, and other materials. Subsequently, on April 20, 1979, FWK applied for a branch office license with Respondent, Carl F. Bailey, Jr. to be the company's "principal" and branch manager in Florida. Between March 26, 1979 and June 26, 1979, while Mr. Carl F. Bailey was not licensed as a securities salesman and while FWK was not registered as a securities dealer, FWK through Bailey executed approximately 774 security sales transactions on behalf of their customers. On June 27, 1979, the Division told FWK that its registration as a security broker-dealer had been approved. At the same time notice was also given that the application for a branch office in Orlando was approved as was the transfer of Carl F. Bailey's registration as a salesman for FWK. Between March 26, 1979 and August 14, 1979, in the course of its business, FWK through Carl F. Bailey "introduced" approximately 263 security transactions on a fully disclosed basis to Robb, Peck, McCooey & company, Inc., which though registered as a securities dealer in New York was not at that time so registered in Florida. Aside from the instant order of suspension, neither Carl F. Bailey, Jr. nor FWK has ever been charged with previously violating the Florida Securities Act. FWK and Carl F. Bailey, Jr., have at least two very satisfied customers, Mr. A.J. Rusterholtz and Mr. Richard W. Baker. They testified in support of Respondents at the final hearing. No evidence was presented to show that either Carl F. Bailey or FWK ever made any inquiry with the Division about when they would be eligible to engage in securities transactions in Florida after submitting their applications for registration. FWK through its Orlando branch office serves approximately 500 securities customers, many of whom are in direct daily contact with the office.
Recommendation In light of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the registration of Forbes, Walsh, Kelly & Company, Inc., as a dealer and to operate a branch office and the registration of Carl F. Bailey, Jr., as an associated salesman, with Forbes, Walsh, Kelly & Company, Inc. be suspended for a period of 65 business days from the effective date of the Department's final order. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 5th day of October, 1980, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Philip J. Snyderburn, Esquire Director, Division of Securities Office of Comptroller The Capitol, Suite 1402 Tallahassee, Florida 32301 Patrick T. Christiansen, Esquire AKERMAN SENTERFITT & EIDSON 17th Floor, CNA Building Post Office Box 231 Orlando, Florida 32802
The Issue The issue is whether portions of Rules 12A-1.001(3)(b) and 12A-1.001(3)(q), Florida Administrative Code, are invalid exercises of delegated legislative authority.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that petitioner's request for a refund pursuant to F.S. 215.26 be denied. Respectfully submitted and entered this 4th day of March, 1977 in Tallahassee, Florida. DIANE T. TREMOR 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 4th day of March, 1977. COPIES FURNISHED: Gerald L. Lewis Comptroller State of Florida The Capitol Tallahassee, Florida 32304 Carl R. Pennington, Jr. Pennington, Wilkinson and Sauls Post Office Box 3985 Tallahassee, Florida 32303 Patricia S. Turner Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32304
The Issue The issue in this case is whether disciplinary action should be taken against Respondent's insurance licenses based upon the alleged violations of Chapter 648, Florida Statutes, as set forth in the Administrative Complaint.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent to this proceeding, Respondent was licensed in Florida as a limited surety agent (bail bondsman). On September 15, 1989, the Department filed an Administrative Complaint against Respondent seeking disciplinary action against Respondent's license as a result of his alleged employment of a convicted felon identified as Ira Stern. That case, Department of Insurance Case No. 89-L-650RVE, was settled pursuant to a Consent Order entered on January 2, 1990, pursuant to which Respondent was fined $500 and placed on probation for one year. Respondent also agreed not to employ any individual disqualified by Section 648.44(7)(a) to work at his bail bond agency and agreed that no unlicensed person employed by his bail bond agency would be permitted to engage in any activity for which a license was required. The Consent Order incorporated a Settlement Stipulation which specifically provided that the settlement was entered to avoid the costs and uncertainty of litigation and did not constitute an admission by Respondent of any violation of the insurance code. At the time of the hearing in this case, Respondent's license was apparently under suspension pursuant to an Emergency Order of Suspension issued by the Department in Department Case No. 93-ESO-005JDM. The Emergency Order of Suspension is not referenced in the Administrative Complaint and no copy of that Emergency Order has been provided. The basis for entry of that Emergency Order was not established in this case and the parties stipulated that the Emergency Order was not a part of this proceeding. For at least two years prior to the hearing in this case, Respondent was appointed to write bail bonds by American Bankers Insurance Group ("American Bankers"). Respondent previously operated a company known as Barry's Bail Bonds. Apparently as a result of some unsatisfied judgements, Respondent did not issue any bail bonds in his name or in the name of Barry's Bail Bonds during the first 6 months of 1992. At the time of the transactions alleged in the Administrative Complaint, Respondent was married to Linda Ratner. Linda Ratner was a qualified and appointed agent of American Bankers. She was also the principle of Linda's Bail Bonds, Inc. The evidence established that Respondent was a primary contact for American Bankers on behalf of Linda's Bail Bonds. It appears that Linda's Bail Bonds and Barry's Bail Bonds were operating out of the same office in Fort Lauderdale for some periods during 1991 and 1992. Other businesses were also apparently operated out of this office. The evidence established that an individual by the name of Ira Stern was involved in the operations of that office during late 1991 and the first nine months of 1992. The evidence was inconclusive as to who actually employed Ira Stern. The evidence did establish that Respondent and Ira Stern primarily handled the day to day operations of the office, including the bail bond business transacted out of the office. No evidence was presented that Ira Stern was a convicted felon and/or that he was the same individual identified in the prior Administrative Complaint filed against Respondent. Respondent solicited and issued bail bonds through Linda's Bail Bonds on several occasions from January 1992 through July 1992. The evidence established that Linda Ratner signed several American Banker's power of attorney forms in blank. As discussed in more detail below, Respondent utilized several of these forms on behalf of clients during the time period in question. Respondent's authority to write bonds for American Bankers was terminated by American Bankers on or about July 24, 1992. At that same time, the authority of Linda Ratner and Linda's Bail Bonds, Inc. was also terminated. At some point after this termination, Respondent turned over to American Bankers certain tangible collateral that had been held in a safe deposit box. This collateral was turned over sometime between July and September of 1992. The exact date was not established. On September 11, 1992, employees of American Bankers accompanied by a Department investigator, went to Respondent's office and collected all of the files and tangible collateral in the office relating to the outstanding bonds written by Respondent and/or Linda's Bail Bonds for American Bankers. No cash collateral was recovered in connection with those files. Upon arriving at the office, representatives of American Bankers and the Department investigator dealt exclusively with a man who identified himself as Ira Stern and who claimed to be the office manager. As noted above, Respondent was previously disciplined by Petitioner for employing an Ira Stern, who was allegedly a convicted felon. No direct evidence was presented to establish the identity of the person in the office on September 11, 1992 nor was there any evidence that the person who identified himself as Ira Stern was a convicted felon and/or the same individual whom Respondent was accused of improperly employing in the previous disciplinary case. Moreover, no conclusive evidence was presented to establish who actually employed the individual in question. On or about July 9, 1992, Anna Agnew and her husband called Linda's Bail Bonds to obtain a bond to get their nephew out of jail. Respondent responded to the call and told the Agnews that he would issue a bond in return for $100 cash and the delivery of a $1,000 check which was to serve as collateral for the bond. Respondent told the Agnews that he would hold the check as collateral without cashing it until their nephew's case was resolved. To obtain the release of the Agnews' nephew, Respondent submitted American Bankers power of attorney number 0334165 which had been signed in blank by Linda Ratner and filled out by Respondent. The amount of the bond was $1,000. Shortly after the Agnews' nephew was bonded out of jail, Mrs. Agnew discovered that the check they gave to Respondent had been cashed. After the Agnews' many attempts to contact Respondent regarding the check were unsuccessful, Mrs. Agnew wrote to the Department complaining of the situation. On August 17, 1992, the Agnews' nephew's case was resolved. Respondent failed to return the Agnews' collateral within the time provided by law. In an attempt to retrieve their collateral after their nephew's case was completed, Mrs. Agnew testified that her husband unsuccessfully attempted to contact Respondent at his office on a least one occasion. At the time of Mr. Agnew's visit, Respondent's office was allegedly not open. No conclusive evidence was presented as to who cashed the Agnews' check or what happened to the proceeds. On or about January 8, 1993, the managing general agent for American Bankers returned $1,000 to the Agnews in repayment of the collateral. On or about June 21, 1992, American Bankers' power of attorney form number 0333494 was submitted to the Broward County Circuit Court to obtain the release from jail of Wentworth McNorton. The amount of the bond was $1,000. The power of attorney form had been signed in blank by Linda Ratner and was filled in by Respondent. Mr. McNorton's mother, Linnette, arranged for the issuance of the bond by paying Respondent $100 in cash. In addition, she gave Respondent a diamond ring appraised in excess of $10,000 as collateral for the bond. Linnette McNorton asked Respondent to hold the ring as collateral until she could arrange to substitute some other collateral. Liability on Mr. McNorton's bond was discharged by the court on July 14, 1992. Respondent did not return Mrs. McNorton's ring within twenty-one days of discharge of liability on the bond as required by law. Linnette McNorton continued to call Respondent for several months after her collateral was due to be returned. At no time during this period did Respondent return Mrs. McNorton's calls or inform her of the whereabouts of her ring. Approximately five months after Wentworth McNorton was released, Linnette McNorton and her husband went to Respondent's home and confronted him. Respondent advised the McNortons that he did not have the ring and that it had been turned over to the insurance company. Sometime prior to September of 1992, employees of American Bankers took possession of Mrs. McNorton's ring along with other tangible collateral held by Respondent in a safe deposit box. As noted in paragraph 9 above, the evidence did not establish the exact date American Bankers took control of the collateral in the safe deposit box. At the time, Mrs. McNorton's ring was marked improperly and the staff of American Bankers was unable to identify which file it belonged with. Mrs. McNorton's ring was finally returned to her on April 15, 1993 by American Bankers after they had determined that the mislabelled and unidentified ring in their possession was Mrs. McNorton's. On or about March 13, 1992, American Bankers power of attorney numbers 0295546, 0295547, and 0295548 were executed for the issuance of three bail bonds on behalf of Kevin Krohn, the principle. The total face value of these three bonds was $3,000. The powers of attorney had been signed in blank by Linda Ratner. The other handwriting on the powers of attorney appears to be Respondent's, however, the circumstances surrounding the execution and delivery of these powers was not established. The records obtained from Respondent's office on September 11, 1992 indicate that Jeanette Krohn, the indemnitor, paid $300 in premiums for the three bail bonds described in paragraph 24 and also put up $3,000 in cash collateral. The handwriting on the collateral receipts appears to be Ira Stern's however, the circumstances surrounding the execution of these documents was not established. The last of the bonds described in paragraph 24 was discharged by the court on April 22, 1992. In July of 1992, the Department received a complaint that Jeanette Krohn was unable to obtain the return of her $3,000 cash collateral. The Department notified American Bankers of the complaint and a representative of the insurance company contacted Respondent who advised that the collateral had been repaid on June 22, 1992 by check no. 1021 drawn on the trust account of Linda's Bail Bonds. June 22, 1992 was well beyond the twenty-one days provided by law for return of the collateral. The check which Respondent told the insurance company was issued to return Ms. Krohn's collateral was purportedly signed by Linda Ratner. The check was dishonored by the bank. The signature of Linda Ratner on the check given to Ms. Krohn was forged. The evidence was insufficient to establish who forged the signature. American Bankers paid Jeanette Krohn $3,000 on or about January 8, 1993 as repayment for the cash collateral placed for the bonds. In March of 1992, M. T. Heller contacted Respondent to procure a bail bond. Respondent arranged for the issuance of the bond. When the bond was discharged, Mr. Heller returned to Respondent's office, where he dealt with Ira Stern in attempting to obtain return of the collateral.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order finding Respondent guilty of the violations alleged in Counts I, II, and III of the Administrative Complaint and dismissing Counts IV and V. As a penalty for the violations, an administrative fine of $1,500 should be imposed and the license issued to the Respondent, Barry Seth Ratner, under the purview of the Florida Department of Insurance should be suspended for a period of two years, followed by a two year probationary period. DONE and ENTERED this 4th day of October, 1994, at Tallahassee, Florida. 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 4th day of October, 1994. APPENDIX TO RECOMMENDED ORDER Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. Petitioner's proposed findings of fact Subordinate to Findings of Fact 3. Subordinate to Findings of Fact 4 and 9. Subordinate to Findings of Fact 5. Subordinate to Findings of Fact 24. Subordinate to Findings of Fact 25. Adopted in substance in Findings of Fact 26. Subordinate to Findings of Fact 27. Subordinate to Findings of Fact 28. Subordinate to Findings of Fact 29. Subordinate to Findings of Fact 30. Subordinate to Findings of Fact 27 and 28. Subordinate to Findings of Fact 17. Adopted in substance in Findings of Fact 18. Adopted in substance in Findings of Fact 19. Adopted in substance in Findings of Fact 20. Subordinate to Findings of Fact 22. Subordinate to Findings of Fact 21. Adopted in substance in Findings of Fact 23. Subordinate to Findings of Fact 20 and 22. Adopted in substance in Findings of Fact 11. Adopted in substance in Findings of Fact 11. Adopted in substance in Findings of Fact 13. Adopted in substance in Findings of Fact 13. Subordinate to Findings of Fact 16. Adopted in substance in Findings of Fact 14. Adopted in substance in Findings of Fact 31. Subordinate to Findings of Fact 32. Adopted in substance in Findings of Fact 10. Subordinate to Findings of Fact 33. Adopted in substance in Findings of Fact 2. Subordinate to Findings of Fact 34. Respondent's proposed findings of fact Adopted in substance in Findings of Fact 1 and 3. The first sentence is adopted in substance in Findings of Fact 1. The second sentence is adopted in substance in Findings of Fact 4. The third sentence is adopted in substance in Findings of Fact 9. The remainder is rejected as unnecessary. Adopted in substance in Findings of Fact 6. Subordinate to Findings of Fact 11 and 15. Subordinate to Findings of Fact 17-23. Subordinate to Findings of Fact 24-30. Subordinate to Findings of Fact 14. Subordinate to Findings of Fact 2 and 31-34. Addressed in the Preliminary Statement. COPIES FURNISHED: Joseph D. Mandt, Esquire Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0333 Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil, Esquire General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300
The Issue The issue for consideration in this matter is whether Petitioner should be granted registration as an associated person of FISCL Securities in Florida.
Findings Of Fact At all times pertinent to the allegations herein, the Petitioner was an applicant for registration as an associated person of FISCL Securities. The Respondent, Department, was the state agency charged with the administration and enforcement of Chapter 517, FLORIDA STATUTES, the Florida Securities and Investor Protection Act, and the rules promulgated thereunder which include the registration of associated persons as securities dealers inthis state. Under the rules of the Department, anyone who seeks to represent a securities dealer in Florida is required to file an application form, (Form U- 4), with the National Association of Securities Dealers, (NASD), which, upon review, is forwarded to the state in which the applicant resides and seeks registration. If the records of the NASD disclose any disciplinary action having been taken against the applicant, it is identified to the state in which registration is sought. In Florida the Department is the appropriate agency and Department officials review the application to see if it should be approved. In this regard, all disciplinary information, the records of the NASD, is forwarded to the pertinent state for review in accordance with the rules and statutes of that state and, based on the information provided, a decision is made as to whether the application should be approved fully, approved with conditions, or denied. In Florida, all documents relating to the applicant's disciplinary history are secured and reviewed by the Department's Division of Securities prior to a recommendation being made as to approval or denial of the application for registration. In the instant case, the information submitted by NASD, pertaining to the Petitioner herein, included evidence of a prior disciplinary record. Upon receipt of the notice, Ms. Cain, the Division's Assistant Director, sent out a discrepancy letter to the Petitioner and requested copies of the disciplinary record and his form U-4 from NASD. The information submitted to the Department by Ellen J. Badler, Assistant Director, Special Registration, with NASD, dated July 18, 1990, reflected three letters of admission, waiver and consent from First Heritage Corporation, a securities dealer in Southfield Michigan, and Louis Feldman, Petitioner, a registered options principal with and president of the firm. The documents show that on the basis of periodic review of the company records in October and November, 1981, the corporation failed to obtain or maintain option account agreements for 7 of its option customers; that in 5 cases it failed to obtain or maintain sufficient background and financial information on customers approved for trading; and that it failed to show the date prospectuses were furnished to options customers. All of the above were cited as violations of Article III, Section 33, Appendix E, NASD's Rules of Fair Practice. This inquiry also indicated that the corporation and Petitioner failed to inform its customers, in writing, of the method it used to allocate exercise notices to its customers' accounts, and failed to explain the way the system operated and its consequences, in violation of Section 63, of NASD's Uniform Practice Code. Mr. Feldman, along with the company, admitted those violations in a Letter of Admission, Waiver and Consent he executed in response to NASD's District 8 Business Conduct Committee, (Committee), and they were punished with a censure to the company and a joint fine of up to $500.00 for Mr. Feldman andthe company. No further disciplinary action was taken against the Petitioner or his company by NASD, the SEC, or the state of Michigan until, in 1989, NASD entered its Decision and Order of Acceptance of Respondents' Offer of Settlement regarding three Complaints filed by the Committee in 1988 for alleged violations of rules of the Municipal Securities Rulemaking Board, (MSRB), and the Rules of Fair Practice. These complaints, filed against Petitioner, First Heritage, and as to one of the three, to a third party as well, related to: effecting the purchase and sale of municipal securities at prices in which the aggregate price at which the securities were purchased or sold were not reasonable and fair under the circumstances; placing several different advertisements which omitted material facts and were mis- leading; again, purchasing and selling municipal securities at prices which were not fair and reasonable. The Committee found that the Petitioner and the other parties involved were in violation of the rules as alleged, and fined Petitioner and First Heritage $10,000.00 jointly as to the two price allegations, and $5,000.00 as to the advertising allegation. Petitioner claims the violations were more ministerial and technical than substantive and that no customer ever complained about or was in any way injured by those actions. As to the advertisements, he claims they were not misleading. Examination of the advertisements does not necessarily support that claim, however, He also claims that the policies complained of were the same as those followed for the 13 years the company was in business and prior audits by NASD had never resulted in any noted discrepancies. The Department does not consider as pertinent the fact that injury to a consumer was not involved. By the same token, given, as here, the completed disciplinary action which has become final, it will not look behind that action and re-litigate, at a hearing such as this, the truth of the allegations. Petitioner also claims that in each case he was advised by counsel that it would be useless to fight the allegations of misconduct since it appeared the collective mind of the agency was made up to take action. Further, weighing the minimal fines sought against the extensive cost to Petitioner in attorney fees and lost commissions while litigating the allegations, he elected to take that route less expensive to him in the short run and accept punishment. This decision did not, it would appear, redound to his benefit. Petitioner also claims, and it is so found, that at no time has any disciplinary action ever been taken against him for actions in the securities business by the states of Michigan or Florida. On the basis of those actions, by letter of October 11, 1990, the Department notified the Petitioner that his application for registration was denied. The two page letterclearly indicated the Petitioner's professional history and the fact that he was the subject of "at least two regulatory actions filed by the NASD." The letter then listed the specific allegations of misconduct charged against the Petitioner in each of the two actions and noted the agency action taken in each case. The Department's letter also cited the pertinent statute which authorizes it to deny an application for registration and the bases therefor, and noted the reasons for its action. Petitioner was also notified of his right to and the procedure for contesting the Department's action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore recommended that a Final Order be entered denyingPetitioner, Louis Feldman's application for registration as an associated person of FISCL Securities in Florida. RECOMMENDED in Tallahassee, Florida this 17th day of September, 1991. ARNOLD H. POLLOCK 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 17th day of September, 1991. COPIES FURNISHED: Gregory G. Schultz, Esquire Schultz & Associates, P.A. 26750 U.S. Highway 19 N. Suite 310-A Clearwater, Florida 34621 Margaret S. Karniewicz, Esquire Department of Banking and Finance Suite 1302, The Capitol Tallahassee, Florida 32399-0350 Gerald Lewis Comptroller The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves General Counsel Department of Banking and Finance The Capitol, Plaza Level, Room 1302 Tallahassee, Florida 32399-0350
The Issue Should the Department of Revenue grant Petitioner's request for a temporary tax exemption permit and request for refund of sales and use tax which has been paid under protest? See Section 212.08(5)(a) and (b)3a, Florida Statutes.
Findings Of Fact Petitioner opened a new commercial laundry facility in Pompano Beach, Florida, in 1993. Petitioner installed in the new facility machinery and equipment costing approximately $1,400,000.00 for the purposes of cleaning and processing linens used by hospitals in the south Florida area (the "Laundry Equipment"). Petitioner charges a fee to hospitals in the south Florida area for cleaning and processing the hospitals' linens with the Laundry Equipment. The new facilities are additional, not replacement, facilities. The Laundry Equipment: Qualifies as "industrial machinery and equipment", as defined by Section 212.08(5)(b) and (6)(c), Florida Statutes; Was purchased by Petitioner for use in a new business; Processes items of tangible personal property, the hospital's linens, at a fixed location; Was purchased before Petitioner first began its productive operations and delivery was made within 12 months of that date; and Has increased productive output at Petitioner's commercial laundry facility. The equipment included a tunnel washer system, conveyers, feeders/folders, ironers, a boiler, and air compressors. By application dated September 3, 1993, Petitioner applied for a temporary tax exemption permit with respect to the Laundry Equipment which it planned to purchase for use in its new business. Section 212.08(5)(b), Florida Statutes, requires that a taxpayer obtain that permit to receive the exemption. The Department denied Petitioner's application. On August 22, 1994, Petitioner paid to the Department, under protest, the sum of $18,095.36, which represented the tax of $16,773.98, plus interest of $1,321.38, on Petitioner's purchase of the Laundry Equipment. Petitioner timely filed its claim for refund, which the Department denied. Respondent denied Petitioner's request for a temporary tax exemption permit, and Respondent denied Petitioner's refund claim based upon Rule 12A- 1.096, Florida Administrative Code. Petitioner's request for a tax exemption permit and Petitioner's refund claim are based upon the exemption provided in Section 212.08(5)(b), Florida Statutes, which applies to a new (as opposed to an expanding) business.
Recommendation In consideration of the facts found and conclusions of law reached, it is, RECOMMENDED: That a final order be entered which denies the request for a tax exemption permit and a refund in the amount of $18,095.36. DONE and ENTERED this 13th day of November, 1995, in Tallahassee, Florida. CHARLES C. ADAMS, 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 November, 1995. COPIES FURNISHED: Robert A. Pierce, Esquire Emily S. Waugh, Esquire MACFARLANE, AUSLEY, FERGUSON & MCMULLEN Post Office Box 391 Tallahassee, FL 32302 James McAuley, Esquire Office of the Attorney General The Capitol-Tax Section Tallahassee, FL 32399 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100
Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. The Petitioner, Christopher James Arenal, filed a Form U-4 application seeking registration as an associated person with Rocky Mountain Securities & Investments, Inc., located at 1600 Stout Street, Suite 920, Denver, Colorado 80202. Said application was received by the Respondent on April 24, 1986. By letter dated June 17, 1986, the Respondent advised the Petitioner that it intended to deny his application for registration for the reasons set forth at length in the letter. (At the hearing the Respondent stipulated that the allegations of the top paragraph on the second page of the denial letter of June 17, 1986, should be deleted.) Thereafter, the Petitioner filed a timely request for hearing. Except for the reasons stated in the Respondent's denial letter dated June 17, 1986, the Petitioner is otherwise eligible for the registration he seeks. On October 26, 1982, the State of Tennessee issued a Complaint and Notice in the matter of First Colorado Investments and Securities, Inc., Mr. Arenal, and others, alleging the sale of securities while not being properly registered. On February 7, 1983, Mr. Arenal entered into a Findings and Consent Order which found that Mr. Arenal and others had engaged in securities transactions involving Tennessee residents at a time when Mr. Arenal and others were not registered in the State of Tennessee. Mr. Arenal and others were ordered to cease and desist from acting as agents in the State of Tennessee without being lawfully registered to do so. The transactions in question took place during 1981. The evidence does not show how many of those transactions involved Mr. Arenal. On April 28, 1983, the State of Wisconsin entered into a Stipulation and Consent Order of Prohibition with Mr. Arenal in which Mr. Arenal agreed to the entry of an Order of Prohibition. On June 2, 1983, a Consent Order of Prohibition was entered into in which Mr. Arenal was prohibited from transacting business as a securities agent in Wisconsin without lawful registration in that state. That order had as its genesis the fact that during 1981 Mr. Arenal had engaged in nine securities transactions for a Wisconsin resident who had previously been a client of Mr. Arenal when the client resided in New York. On January 11, 1984, the State of Iowa issued a Summary Order Denying Application For Securities Agent License on an application filed by Mr. Arenal. The findings of fact in that order included findings that Mr. Arenal had "engaged in securities transactions on behalf of an Iowa resident in March, 1981, while unlicensed as a securities agent," and, with regard to an affidavit filed with the Iowa Division of Securities, that "Mr. Arenal's filed and notarized statement is a false statement." Since the issuance of the January 11, 1984, order, the State of-Iowa has approved Mr. Arenal's application to be registered as a securities agent and he is presently registered in that state. On November 5, 1984, the State of Utah entered an Order Summarily Denying Application For Registration as an Agent on an application filed by Mr. Arenal. The denial was based on Mr. Arenal's prior disciplinary history. Since the issuance of the November 5, 1984, order, the State of Utah has approved Mr. Arenal's application to be registered as a securities agent and he is presently registered in that state. The State of Oregon, by letter dated November 1, 1985, denied Mr. Arenal's application for registration in that state. The Oregon denial letter does not set forth a factual basis for the denial. On September 6, 1984, the State of Nebraska issued an Order Denying Agent Registration on an application filed by Mr. Arenal. The denial was based on his prior disciplinary history. Mr. Arenal was again denied registration in the State of Nebraska on February 20, 1986. During 1985, the staff of the Respondent's Division of Securities was almost tripled in size. Shortly after the increase in staff size, a Task Force recommended that the Division of Securities devote more time and energy to the review of applicants with disciplinary history in order to more carefully screen such applicants. As a result of the increase in staff size and the increased emphasis on review of applicants with disciplinary history, the Respondent is now rejecting applications that previously might have gotten through a cursory review. All of the adverse actions taken against Mr. Arenal by the states of Tennessee and Wisconsin were based on events that occurred in 1981, at one firm, First Colorado Investments and Securities, Inc. Mr. Arenal's supervisors at that firm advised him that it was permissible for him to sell certain securities in states where he was not registered. Since those improper sales in 1981, Mr. Arenal has not engaged in any subsequent transactions in states where he was not registered. During his approximately eleven years of professional experience in the securities field, there have never been any client complaints against Mr. Arenal. Mr. Arenal has been previously registered as an associated person in the State of Florida. He was last registered in Florida from approximately February of 1985 until December of 1985. His prior registrations were processed prior to the changes in policy and procedure described in paragraph B, above.
Recommendation Based on all of the foregoing, I recommend the entry of a Final Order granting Mr. Arenal's application for registration as an associated person. DONE AND ENTERED this 9th day of June, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 9th day of June, 1987. COPIES FURNISHED: H. Richard Bisbee, Esquire Assistant General Counsel Office of the Comptroller Suite 1302, The Capitol Tallahassee, Florida 32399-0350 Mr. Christopher James Arenal 1600 Stout Street Suite 920 Denver, Colorado 80202 The Honorable Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32399-0350 =================================================================
Findings Of Fact Petitioner is a not for profit corporation, with physical facilities in Florida, holding tax exemption certificate 06-01290-00-58, issued November 16, 1977. By letter dated October 22, 1984, Respondent announced its intent to revoke the certificate. Petitioner is qualified as a non-profit entity under Section 501(c)(3) of the Federal Internal Revenue Code. The certificate at issue has been held continuously by Petitioner since 1977. Petitioner provides credit counseling assistance free of charge to any individual 1/ who is encountering difficulty paying his debts. Petitioner typically assists such individuals by contacting creditors, obtaining their agreement to accept smaller payments, and by taking temporary control of the client's income and making periodic payments on the client's behalf. Petitioner also gives educational presentations on personal financial management in the communities where it operates (Orange, Seminole, and Volusia Counties). Additionally, it provides counseling for the U.S. Department of Housing and Urban Development to persons facing foreclosure of home mortgages. It does not charge a fee for this service. Petitioner relies primarily on the United Way for its operating revenues. It also receives major support from the creditors it deals with, asking them to contribute 15 per cent of the amount sent to them on behalf of its clients. Additionally, Petitioner receives interest incomes on client trust funds.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Revenue enter a Final Order reissuing Certificate of Exemption Number 06-01290-00-58 to Petitioner. DONE and ENTERED this 24th day of May, 1985, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1985.
