The Issue The issues in this case are (1) whether the Petitioner, the Department of Transportation, should assess against the Respondent, Cypress Creek Landscape Supply, Inc., a penalty for violating the Taylor Road bridge weight restriction, and (2), if so, the amount of the penalty.
Findings Of Fact On February 9, 1990, a commercial motor vehicle owned and operated by the Respondent, Cypress Creek Landscape Supply, Inc., was driven over the bridge over Alligator Creek on Taylor Road (County Road 765A), a federal aid primary highway near Punta Gorda, Charlotte County, Florida. The vehicle, loaded with mulch, was weighed at 71,760 pounds. The Taylor Road bridge is part of a route that can be taken by I-75 traffic wishing to bypass one of the Department's I-75 weight stations. The bridge is posted as being restricted to a maximum weight of 22 tons. The weight restriction is posted at the bridge, and warnings that the weight restricted bridge is ahead appear at conspicuous places at terminals of all intermediate crossroads and road junctions with the section of Taylor Road containing the weight restricted bridge. Notices are posted twice near the exit from I the Respondent's vehicle used to bypass the Department weight station. From these locations, the Respondent's vehicle could have been turned around to avoid the weight restricted bridge. A Department Compliance Officer cited the Respondent for violating the maximum weight restriction for the Taylor Road bridge and assessed a $1,388 penalty, calculated at five cents per pound by which the scaled weight of the vehicle (71,760) exceeded the maximum weight (44,000 pounds). The Department's Form 509-13, Revised 05/89, titled the "Load Report and Field Receipt," specifies that, in subtracting the legal weight from the the scaled weight to determine the amount of overweight, a ten percent tolerance should be added to the legal weight. This is how the Department interprets and applies the requirement of Section 316.545(2)(a), Fla. Stat. (1989), that, for enforcement purposes, all scaled weights of the gross or axle weight of vehicles and combinations of vehicles shall be deemed to be not closer than 10 percent to the true gross weight.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a final order finding the Respondent, Cypress Creek Landscape Supply, Inc., guilty of violating the Taylor Road bridge weight restriction and assessing a $1,168 penalty (reduced from $1,388). RECOMMENDED this 29th day of May, 1991, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 29th day of May, 1991. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Steven P. Lewis, President Cypress Creek Landscape Supply, Inc. 12734 North Florida Avenue Tampa, Florida 33612 Ben G. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Elyse S. Kennedy Executive Secretary Commercial Motor Vehicle Review Board Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Department of Transportation, was responsible for the licensing and regulation of the operation of commercial motor vehicles on all streets and roads in this state. The Respondent, Florida Mining & Materials operates and, at the time of the alleged violation, operated commercial vehicles over the roads of this state. By letter dated June 11, 1990, George L. Crawford, P.E., Acting Director of Lee County's Department of Transportation and Engineering, notified the Petitioner's Office of Motor Carrier Compliance that it appeared trucks were exceeding the posted weight limits of the Ortiz Road Culvert, located 0.3 miles south of SR - 80 in Lee County. As a result of this letter, the Department began to monitor the cited culvert and on July 19, 1990, Officer Ellis K. Burroughs observed Respondent's cement dump truck cross the culvert in front of and to the side of which, in plain view, was a sign indicating that trucks weighing over 5,000 pounds should detour and go down Luckett Road without crossing the culvert. According to Mr. Burroughs, Respondent's vehicle did not detour as directed and went north on Ortiz Avenue, over the culvert. Mr. Burroughs gave chase and finally stopped the driver of Respondent's truck some 6 or 7 blocks north of the culvert. When asked why he had failed to use the detour and had crossed the culvert, the driver of the truck said his office had told him to do so and he had done so before. This comment is introduced not to show aggravation but to dispel any inference of lack of knowledge of the limitation. The sign in question had been erected on December 4, 1980. Some months after this incident, the sign was changed and the current permissible weight is 20 tons. No reason was given for the change nor was any information presented as to whether any modifications were done to the culvert before or since the change. The culvert in issue was described as of light construction - a culvert pass-through underneath the roadway. Mr. Burroughs weighed the offending truck at the scene and determined it had a gross weight of 45,700 pounds. The legal weight on that bridge at the time was only 5,000 pounds and, therefore, the Respondent's truck was overweight by 40,700 pounds. At a penalty of 5 cents per pound of violation, the penalty was assessed at $2,035.00 which was paid by the Respondent on August 3, 1990. Respondent's representative, Mr. Watson, was not present at the time and had no personal knowledge of the incident. He claims, however, that his company was operating under the impression that even at the time, the weight limit over that culvert was 20 tons. He does not concede that at the time of the incident the load limit was only 5,000 pounds. The weight of the evidence, however, is that it was. He claims this road is the only way they have of getting to certain jobs and if cut off from crossing, they are cut off from their business. Mr. Watson admittedly is not familiar with the area and overlooks the fact that there are alternative routes to the other side of that culvert, albeit somewhat longer. He discounts the somewhat longer, (2 1/2 miles additional), route claiming, "That's a lot of milage when what you're hauling is redi-mix concrete." Mr. Watson introduced several pictures of other large trucks going over that same culvert in an effort to show that other vehicles may also have been in violation. Some of those pictures were taken subsequent to the limit change and reflect that the limit is 20 tons. Further, Mr. Burroughs and Mr. Thompson indicate that subsequent to the letter from the County requesting increased surveillance, at least 45 to 50 citations were issued at that culvert. Some carriers were cited several times. Respondent was cited only once. After paying the penalty assessed, Respondent appealed it to the Department's Commercial Vehicle Review Board which reviewed it at its November 8, 1990 meeting and determined that a refund was not appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent's request for a refund of the $2,035.00 fine paid for the violation of the weight limits on the culvert in question here be denied. RECOMMENDED this 8th day of July, 1991, in Tallahassee, Florida. 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 8th day of July, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. COPIES FURNISHED: H. Robert Bishop, Jr., Esquire Department of Transportation 695 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Ray Watson Operations Manager Florida Mining & Materials Post Office Box 2367 Tallahassee, Florida 33902 Ben G. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue The issue in this case is whether Petitioner is liable to Respondent for fuel taxes, and, if so, whether Respondent's levy on Petitioner's bank deposits is warranted and proper.
Findings Of Fact Petitioner was at all times relevant to this proceeding an active corporation in the State of Florida. Petitioner operated as a motor fuel dealer from its inception in 1984, but in 1996, its application for licensure as a motor fuel dealer was not renewed by Respondent due to the existence of fuel tax delinquencies. Respondent is the state agency responsible for collecting taxes paid by motor fuel dealers. On July 3, 1996, Respondent issued a Notice of Final Assessment and Jeopardy Finding to Petitioner indicating taxes, penalties, and interest due to Respondent in the sum of $74,423.25; a Warrant was issued in that amount and filed with the Pasco County Clerk's Office. On July 3, 1996, Respondent issued another Notice of Final Assessment and Jeopardy Finding to Petitioner indicating taxes, penalties, and interest due to Respondent in the sum of $12,625.64; a Warrant was issued in that amount and filed with the Pasco County Clerk's Office. On July 3, 1996, Respondent issued another Notice of Final Assessment and Jeopardy Finding to Petitioner indicating taxes, penalties, and interest due to Respondent in the sum of $15,245.84; a Warrant was issued in that amount and filed with the Pasco County Clerk's Office. On June 28, 1996, Respondent issued a Notice of Assessment and Jeopardy Finding to Petitioner indicating taxes, penalties, and interest due to Respondent in the sum of $90,317.87; a Warrant was issued in that amount and filed with the Pasco County Clerk's Office. On June 28, 1996, Respondent issued another Notice of Assessment and Jeopardy Finding to Petitioner indicating taxes, penalties, and interest due to Respondent in the sum of $57,864.24; a Warrant was issued in that amount and filed with the Pasco County Clerk's Office. On November 27, 1996, Respondent issued a Notice of Final Assessment and Jeopardy Finding to Petitioner indicating taxes, penalties, and interest due to Respondent in the sum of $81,094.54; a Warrant was issued in that amount and filed with the Pasco County Clerk's Office. Another Warrant was filed in the Pasco County Clerk's Office on May 24, 1996, reflecting delinquent taxes, penalties, and interest owed Respondent due to failure of an electronic transfer by Petitioner because of insufficient funds. The amount of that Warrant was $9,918.92. (A filing fee of $32.00 was assessed for each of the filed Warrants.) The time for challenging the assessments set forth in the notices and Warrants has passed. No credible evidence was presented at final hearing to suggest the assessed amounts were incorrect. Petitioner made some payments on the assessed amounts from time to time. Payments were applied to the outstanding balance in accordance with governing statutes: Filing fees, then accrued interest, then penalties, and then the tax liabilities. After applying the payments and taking into account accruing interest, Petitioner owes Respondent $377,074.29 as of the date of the final hearing. On September 13, 1996, Petitioner wrote a letter to Respondent asking that all penalties and interest on the outstanding balance be waived. The basis of the request was that only one officer of the corporation had actual knowledge of the unpaid fuel taxes. Once the other two officers were made aware, they immediately paid the current taxes and discontinued operation of the business. All assets of the business were sold, and the proceeds provided to Respondent to apply against the outstanding balance. Some revenue was being held by the corporation to provide for orderly termination of the business and upkeep of the real property owned by the corporation. Respondent denied Petitioner's request for compromise of the outstanding debt by letter dated December 19, 1996. Respondent requested from Petitioner evidence that Petitioner had exercised "ordinary care and prudence" in complying with state revenue laws. No evidence of a response by Petitioner was identified at final hearing. On August 27, 2009, Respondent, in recognition that the Warrants would expire after a period of time, notified Petitioner of the need to satisfy all the Warrants immediately. Upon Petitioner's failure to pay, Respondent issued a Notice of Freeze on October 8, 2009, to Synovus Bank where Petitioner's funds were being held. At that time there was $52,990.21 being held by the bank for Petitioner. On November 3, 2009, Respondent issued a Notice of Intent to Levy, advising Petitioner of its intent to seize the money being held at Synovus Bank. Petitioner timely filed a contest to the Notice of Intent to Levy. Respondent notified Synovus Bank of the contest. Petitioner was formed by three individuals: Earl Radcliff, president; Robert Spence; and R. Michal Marston. Spence and Marston were merely investors; Radcliff operated and controlled the business. Neither Spence, nor Marston was involved in the payment of fuel taxes during the period the business was operating. That duty was left entirely up to Radcliff. Upon Radcliff's failure to pay the taxes that were due, Respondent began issuing notices. Finally, in 1996, Respondent refused to renew Petitioner's motor fuel dealer's license, effectively terminating the business. Spence and Marston were not immediately made aware of this fact, but upon learning that the license had not been renewed, they began attempting to make the appropriate tax payments. When it became obvious there was not enough money available to pay the tax liabilities, Spence began taking steps to protect the real estate owned by Petitioner so that it could be sold to meet the tax liabilities. The funds held by Synovus Bank are being used solely to protect the existing real property. Neither Spence, nor Marston, was ever repaid for their initial investment to the corporation. The real property has not been sold due to many reasons, including the downturn in the economy, the existence of environmental problems on the site, and general deterioration of the property. The property is in two parcels: one is an empty lot and the other is being used as an automobile dealership.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Department of Revenue, upholding the Notice of Intent to Levy issued by Respondent as to property owned by Petitioner, Fuel Mart, Inc. DONE AND ENTERED this 28th day of May, 2010, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 28th day of May, 2010. COPIES FURNISHED: Lisa Echeverri, Executive Director Department of Revenue The Carlton Building, Room 104 501 South Calhoun Street Tallahassee, Florida 32399-0100 Marshall Stranburg, General Counsel Department of Revenue The Carlton Building, Room 204 501 South Calhoun Street Post Office Box 6668 Tallahassee, Florida 32314-6668 John Mika, Esquire Office of the Attorney General The Capitol - Tax Section Tallahassee, Florida 32399-1050 Robert Spence Fuel Mart, Inc. 250 North Belcher Road, No. 100 Clearwater, Florida 33765-2622
The Issue Did the Department of Transportation (Department) improperly deny a refund to Petitioner of a penalty assessed pursuant to Chapter 316, Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of enforcing the provisions of Chapter 316, Florida Statutes. On June 7, 1999, the Department's Inspector Clemente Igracio stopped Petitioner's truck for an inspection. After inspecting Petitioner's truck, Inspector Igracio issued a Safety Report Citation numbered 0862152 wherein Petitioner was cited for the alleged violations of Sections 316.515(1) and (3) and 316.550, Florida Statutes. The total fine imposed was $1,600.00 which included a fine of $1,250.00 for the alleged violation of Section 316.515(3), Florida Statutes. However, since the maximum fine imposed for a Section 316.515(3), Florida Statutes, violation is $1,000.00, the total fine imposed was $1,350.00, which Petitioner paid. Subsequently, due to mitigating circumstances, the Department refunded Petitioner the $100.00 that it had paid for the alleged violation of Section 316.550, Florida Statutes. Petitioner does not protest the Section 316.515(1), Florida Statutes violation nor does it protest the Section 316.550, Florida Statutes violation. Petitioner stipulated that the combined length of the truck and trailer was 65 feet, 9 inches. Petitioner also stipulated that the length of the trailer was 42 feet, 10 inches. Inspector Igracio categorized the truck as a "straight- truck" because it had two axles and load-carrying capacity on the power unit. The vehicle in question is a two-axle vehicle with the cargo unit and motive power unit located on the same frame so as to form a single, rigid unit. The subject vehicle and trailer combination was 65 feet, 9 inches in overall length. The subject trailer was 42 feet, 10 inches in length. Petitioner did not have a permit to be over the legal length.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order denying the refund sought by Petitioner. DONE AND ENTERED this 20th of June, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 2000. COPIES FURNISHED: Peter Byra West Coast Towing 124 South Berkley Road Auburndale, Florida 32823 Kelly A. Bennett, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The issue posed for decision herein is whether or not the Respondent/Licensee, David H. Trump d/b/a Swain Builders, Inc., has engaged in conduct which will be set forth hereinafter which warrants the Florida Construction Industry Licensing Board to discipline the Licensee and to impose an administrative fine.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record compiled herein, the following relevant facts are found. By its Administrative Complaint mailed December 3, 1979, the Florida Construction Industry Licensing Board (herein referred to as the Board or Petitioner) seeks to revoke Respondent's contractor's license; to impose an administrative fine in the amount of $1,000.00 and to deny reissuance of Respondent's license until sufficient proof of restitution has been provided the Board. 1/ David H. Trump (herein sometimes referred to as Licensee or Respondent) d/b/a Swain Builders, Inc., is a registered General Contractor who holds license No. RGS 003574, which is current and active. The remaining material allegations of the Administrative Complaint are that from June 8, 1979, Respondent contracted with F. O. Parman to construct an addition to an existing structure for $70,500.00. It is alleged that Respondent, after having received $50,000.00 of the contracted price, came under scrutiny when owner Parman determined that contractors and suppliers were not being paid. As a result, Respondent allegedly made a sworn statement to the effect that "all subcontractors and suppliers had been paid, when in fact they had not been paid". It is also alleged that Respondent subcontracted a heating and air conditioning installation to Air Systems, Inc., for $9,610.00 and Respondent failed to pay for this installation even though he received money from the owner, Dean Waters, It was also alleged in the Administrative Complaint that Respondent was charged with perjury by the State Attorney's office for issuing false statements under oath and that he pleaded nolo contendere to the charges, adjudication of guilt was withheld and Respondent was placed on two years probation to allow him an opportunity to reimburse the victim. 2/ On June 8, 1979, Respondent entered into a contract with F. O. Parman to construct an addition to an existing structure, Big Chief Tire Company, situated at 5444 Normandy Boulevard, Jacksonville, Florida, for the sum or $70,500.00 plus an additional $1,000.00 for a bathroom (Petitioner's Exhibit 1). 3/ To complete this project, Respondent purchased concrete from Silcox Concrete Company during approximately August of 1978 which resulted in an outstanding obligation of $2,067.30. This obligation remained unpaid as of December 2, 1978. Ralph Silcox, the President of Silcox Concrete Company contacted the owner of Big Chief Tire Company, Mr. F. Parman, who agreed to pay approximately 80 percent of the invoiced amount, i.e. , $1,724.20. As a result of this agreement Mr. Parman was not obligated to honor additional claims from Silcox Concrete Company. 4/ Mr. Richard Q. Parman, President of Big Chief Tire Company, appeared at the hearing and related that after having released approximately $50,000.00 to Respondent, further disbursements were withheld based on complaints of various subcontractors including a Mr. Felder, the subcontractor for the heating and air conditioning system for the Big Chief Tire project. At that juncture, Mr. Parman had escrowed approximately $20,000.00 due Respondent for the completion of the project. Mr. Parman insisted that Respondent prepare a list of subcontractors and materialmen who had supplied materials for this project. According to that list, Respondent owed subcontractors and materialmen approximately $24,000.00. Mr. Parman and his son prepared the statement, which was signed, notarized and witnessed (Petitioner's Exhibit 2). The Parmans later discovered that Respondent failed to list Fab-All Metals, the entity which had supplied the steel and miscellaneous metals for completion of the Big Chief Tire project. The Parmans paid Richard G. Hornsbrook, the President of Fab-All Metals, approximately $2,500.00 which represented 80 percent of the amount due Mr. Hornsbrook for metals and steel furnished for the Big Chief Tire project. Thereafter, on January 12, 1979, Mr. Hornsbrook received $300.00 from Respondent based on a settlement agreement Respondent and Mr. Hornsbrook entered to pay the remaining balance due of approximately $623.84. (Petitioner's Exhibit 3) John S. Felder, the President of Air Systems of Florida, Inc., supplied two air conditioning and heating systems for the Big Chief Tire project. Mr. Felder received approximately 80 percent of the amount due him from Mr. Parman, the owner of Big Chief Tire Company. Respondent advised Mr. Felder that the money due him would be paid when the building was completed. Respondent is a registered General Contractor who has been in the contracting business for approximately twenty-two (22) years. Swain Builders, Inc., the entity through which the Respondent was conducting his contracting business, has been defunct since December of 1978. Since that time, Respondent has been self employed primarily doing odd jobs trying to repay cost overruns from another project, the Dean Waters job, which was for a total contracted price of $90,000.00. Respondent incurred cost overruns of approximately $22,000.00 on the Dean Waters project. Respondent did not receive any draws for the Air Systems work on the Dean Waters project. Monies for that work was withheld by the owner, Dean Waters. Respondent failed to recognize that Fab-All Metals was left from the list of contractors provided to Mr. Parman. Mr. Parman prepared the statements which appear on the list of contractors provided by Respondent. Respondent is paying Parman restitution for payments he made to Fab-All Metals. An examination of the list of contractors and materialmen indicates that the list is headed by the words, "Bills Unpaid at Big Chief Tire Co." which is followed by a list of contractors and an amount represented as being de and owing of approximately $23,678.26. Thereafter, there is an affirmation which provides in pertinent part: " the above listed company's(sic) and the amounts designated. is a complete list of all the companies who have extended credit to Swain Builders, Inc. for building materials and labor for the construction of the building. location of Bib(sic) Chief Tire Co. Inc. and have not been paid in full." (Emphasis supplied) The material allegation of the Administrative Complaint is set forth in paragraph 1(f): "That David H. Trump made a sworn statement to the effect that all subcontractors and suppliers had. been paid when in fact they had not been paid". At the outset, it should be noted that Respondent acknowledged that he failed to recognize that Fab-All Metals was left off the list of contractors prepared for Mr. Parman. Respondent acknowledges the fact that an amount is due and owing Fab-All Metals, which amount he is presently making restitution to Mr. Parman. However, the sworn statement does not indicate that all subcontractors and suppliers had been paid when in fact they had not, but rather, is a list of bills unpaid. That language which was prepared by Mr. Parman is set forth at the beginning of the paragraph and is again cited in the last sentence which provides, ". and have not been paid in full".
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent pay an administrative fine of Five Hundred Dollars ($500.00). RECOMMENDED this 20th day of May, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, 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 20th day of May, 1980.
The Issue This case concerns the issue of whether the Respondent's law enforcement officer certification should be suspended, revoked, or otherwise disciplined for multiple violations of Section 943.145(3), Florida Statutes (1981). At the formal hearing the Petitioner called as witnesses Virgil P. Sandlin, David Charles Myers, Joseph Weil, and Neal Branch. Petitioner offered and had admitted into evidence four exhibits. The Respondent testified on his own behalf and offered no exhibits into evidence. Subsequent to the formal hearing, the Respondent filed a motion to supplement the record and that motion is denied on the basis that the documents sought to be made a part of the record are irrelevant to these proceedings. Respondent also filed a motion to dismiss and that motion is hereby denied. Counsel for Petitioner and Respondent filed proposed Findings of Fact and Conclusions of Law for consideration by the Hearing Officer. To the extent that those proposed findings and conclusions are inconsistent with this order, they were rejected as not being supported by the evidence or as irrelevant to the resolution of this cause.
Findings Of Fact At all times relevant to these proceedings the Respondent was and is the holder of law enforcement certificate number 02-13259. That certificate is now in inactive status. During the months of April through November, 1981, the Respondent was an employee of the Florida Game and Fresh Water Fish Commission and was under the supervision of Blanchard Neal Branch. While employed with the Commission as an investigator, Atwell was issued a Toyota pickup truck, firearms, credentials, and confidential identification. The identification was a driver's license with Atwell's cover name. This driver's license was to be used strictly for identification and Respondent had been instructed of this fact on several occasions prior to June, 1981. Respondent was also issued a credit card for the purchase of gasoline for the government vehicle only. On June 24, 1981, Respondent was stopped for speeding by Florida Highway Patrol Trooper Virgil P. Sandlin. When stopped Respondent gave his name as Robert Leonard Austin and gave the trooper his confidential identification as his driver's license. The name, Robert Leonard Austin, was Respondent's cover name and the name that appeared on the license. This stop took place on U.S. 19 about five or six miles north of Inglis, Florida. The Respondent was given a ticket for driving 69 miles per hour in a 55-mile-per-hour zone. At the time he was stopped, Respondent had another individual in the truck with him. Approximately a month after the citation was issued Respondent contacted Trooper Sandlin and asked to meet with him. Trooper Sandlin did meet with Respondent and Respondent showed him his badge and asked the trooper to speak with the judge and ask him to withhold adjudication on the speeding ticket. Trooper Sandlin said he would do it as a professional courtesy. During this meeting Respondent used the name of Bobby Austin. As a result of the citation Respondent was found guilty and fined $25. The case was heard on August 13, 1981, and the fine was to be paid within ten days. The fine was not paid and the Department of Highway Safety and Motor Vehicles was notified to suspend Respondent's confidential driver's license. After learning of this, Captain Branch ordered Respondent to go to the court in Levy County and pay the fine. At the time of the stop in Levy County on June 24, 1981, Respondent was assigned to an undercover investigation in Dixie County and had lost complete contact with his backups for the 24-hour period in which he had been stopped. Prior to being assigned to the Dixie County investigation, Respondent had been assigned to an investigation in Levy County, but was not authorized to work on that investigation during the time he was assigned to the Dixie County investigation. Prior to June 24, 1981, Respondent had been counseled about driving at excessive speeds and had been cautioned to abide by the speed limits posted. On October 31, 1981, Respondent was stopped for speeding near Chiefland, Florida. The officer did not get an official clocking on Respondent's truck but estimated his speed to be in the range of 55 to 70 miles per hour in a 30-mile-per-hour zone. When the Chiefland police officer, David C. Myers, stopped the Respondent, he shined his spotlight on Respondent's vehicle and Respondent got out of the vehicle with his hands up. The police officer had radioed in a description of the truck and was informed that a vehicle meeting that description had been involved in a domestic dispute earlier in the day. As a result of this information, when Respondent gave the officer his driver's license, the officer began to run a wanted check on the license, which carried a Quincy address. At this time Respondent gave the officer a second driver's license with the same picture. He also showed the officer his credentials and explained that he was in the area working undercover with the Game and Fresh Water Fish Commission. Respondent described for the officer the case on which he was working. At no time during this stop did the officer draw his weapon. No charges were brought by the officer. After this incident Respondent informed Captain Branch, his supervisor, that he had had a run-in with a Chiefland police officer and that the officer had pulled a gun on him. Captain Branch called the police officer and questioned him about the incident. The officer denied pulling his gun and Captain Branch again questioned Atwell about the incident. Atwell again stated that the officer had pulled a gun and demonstrated the combat stance the officer had taken. At the time he was stopped in Chiefland, Respondent was assigned to an undercover investigation in Levy County where Chiefland is located. Because of problems relating to unauthorized trip extensions and problems with per diem (the method Respondent had used for claiming per diem), Respondent had been counseled and placed on a very strict schedule prior to October, 1981. He was instructed in each assignment as to when he would report to the assignment and when he would return. He was also given a call-in schedule and was instructed to call in and get authorization for any change or extension of his return time. In October, 1981, Respondent had two unauthorized trip extensions. On or about October 9, 1981, Respondent was on a trip and extended the trip two or three days without authorization. He did not call in and his supervisor had no knowledge of his whereabouts for that two- or three-day period. On October 23, 1981, Respondent left on a trip and was instructed to return no later than the morning of October 25, 1981. Respondent did not return and did not call in until October 27, 1981, when Captain Branch received a call from Respondent from his home in Quincy. He was two days overdue. When questioned about the unauthorized extension, Respondent stated he was with the subject of the investigation the entire time and could not call in. However, Respondent's investigative report revealed that he was not with the subject from midnight on October 24 to 1:00 p.m. on October 25, and from midnight on October 25 to the afternoon of October 26. Respondent could have called in during these time periods. During his employment with the Florida Game and Fresh Water Fish Commission the Respondent was counseled regarding irregularities in his per diem travel expense reports and vehicle cost reports. During the months of April through October, 1981, there were numerous discrepancies and unexplained irregularities in the travel expense reports, vehicle cost reports, law enforcement itinerary, and law enforcement investigative activity reports filed by Respondent. These irregularities include: A per diem report filed by Respondent reflects that he was on assignment in Levy County from 5:00 p.m. on April 9, 1981, through 8:00 a.m. on April 12, 1981. Per diem for this period was claimed and paid. On April 10, 1981, 20.7.gallons of gasoline were purchased in Quincy on Respondent's government credit card. On April 11, 1981, 31.2 gallons of gasoline were purchased in Chattahoochee on Respondent's government credit card. The itinerary report filed by Respondent for April 14, 1981, indicates 8 hours of duty. However, Respondent's vehicle cost report for the same date indicates his vehicle was in Quincy (home) on April 14. On April 18, 1981, Respondent purchased 18 gallons of gasoline in Quincy. On April 21, 1981, Respondent purchased 30.7 gallons of gasoline in Quincy. Respondent's itinerary for this period states that he was off duty on April 18 and 19 and worked in Tallahassee on April 20. The cost report for Respondent's vehicle indicates 266 miles were driven to Tallahassee and back to Quincy and vicinity. On April 24, 1981, Respondent purchased 33.3 gallons of gasoline in Quincy and on April 27, 1981, purchased 35.4 gallons of gasoline in Quincy. The itinerary report filed by Respondent for this period reflects that he was off duty April 24 through April 26, 1981, and worked four hours in Tallahassee on April 27. Respondent's vehicle cost report shows Respondent's vehicle was idle during this period except for a trip to Tallahassee. 70 miles were reported as driven during this period, but 35.4 gallons of gasoline were purchased. On May 15, 1981, 32 gallons of gasoline were purchased on Respondent's government credit card. On May 16, 1981, 31.9 gallons of gasoline were purchased on Respondent's government credit card. These purchases were made on a credit card issued in the name of Fredrick R. Tedder, an alias used by Respondent in a prior case. On May 19, 1981, 28.3 gallons of gasoline were purchased by Respondent on his government credit card in Quincy, Florida. Respondent's itinerary indicates he was off duty May 16 and 17 and worked in Tallahassee on May 18. The purchase on May 16 was not logged on the vehicle cost report and no receipts were submitted for this purchase. On May 23, 1981, Respondent purchased 12.2 gallons of gasoline in Quincy and on May 26, 1981, purchased 32.3 gallons of gasoline in Quincy. Respondent's itinerary report shows he was off duty May 23 and 24, and worked four hours in Tallahassee on May 25. The vehicle cost report shows the vehicle was idle on May 24 and made a trip to Tallahassee on May 25. 75 miles were reported as driven on these dates, but 32.3 gallons of gasoline were purchased. On June 6, 1981, Respondent purchased 17.4 gallons of gasoline in Quincy and on June 10, 1981, purchased 31 gallons of gasoline in Quincy. Respondent's itinerary report reflects that he was off duty June 6, 7, and 8 and worked 6 hours in Tallahassee on June 9. 18 miles were reported as driven on these dates but 31 gallons of gasoline were purchased. The purchase on June 6, was not logged on the vehicle cost report and Respondent submitted no receipts for this purchase. On June 11, 1981, Respondent purchased 11.2 gallons of gasoline in Crystal River, Citrus County, Florida. Respondent's travel voucher, itinerary report and investigative report show activities in Levy County from June 10 to June 12. The June 11 purchase was not logged on the vehicle cost report and no receipts were turned in. The license tag number recorded by the station attendant was not that of Respondent's commission-issued vehicle but was the tag number of a vehicle registered to Anita M. Simzyk of Inglis, Florida. On June 12, 1981, Respondent purchased 27.5 gallons of gasoline in Quincy and on June 16 purchased 23.6 gallons of gasoline in Capps, Florida. Respondent's itinerary report shows he was off duty on June 13 and 14 and worked in Tallahassee 6 hours on June 15. The vehicle cost report shows Respondent's vehicle was idle on these dates except for a trip to Tallahassee on June 15. 70 miles were reported as driven on these dates, but 23.6 gallons of gasoline were purchased. On June 17, 1981, Respondent purchased 36 gallons of gasoline in Chiefland, Levy County, Florida. Respondent's travel voucher indicates he left Tallahassee at 9:00 a.m. on June 16, en route to Dixie County and returned to Tallahassee at 1:00 p.m. on June 19. Respondent's investigative trip report indicates he arrived in Cross City, Dixie County, at 10:00 a.m. on June 16, went to Inglis in south Levy County from 10:00 p.m. to 11:30 p.m. on June 16 and returned to Cross City until midday on June 19. The vehicle cost report and itinerary also indicate detail in Dixie County during this period. On July 1, 1981, Respondent purchased 19.9 gallons of gasoline in Chiefland, Levy County, Florida. Respondent's travel voucher indicates he left Tallahassee for Dixie County at 2:00 p.m. on June 30 and returned to Tallahassee at 8:00 p.m. on July 3. No investigative trip report was submitted for this period and the vehicle cost report and itinerary report indicate detail in Dixie County during this period. On July 9 and July 13, 1981, Respondent's itinerary report shows 10 hours duty and 3 hours duty respectively. Respondent's vehicle cost report indicates his vehicle was idle on these two dates. On July 10, 1981, Respondent purchased 31.3 gallons of gasoline in Quincy and on July 14, 1981, purchased 29.3 gallons of gasoline in Quincy. Respondent's itinerary report indicates he was off duty July 4 and 5, worked in Tallahassee July 6 and 7, was off duty July 8, worked in Tallahassee July 9 and 10, was off duty July 11 and 12 and worked in Tallahassee July 13. The vehicle cost report indicates Respondent's vehicle was idle on these dates except for trips to Tallahassee on July 6, 7, and 10. There were 196 miles reported as driven during this period, but 60.6 gallons of gasoline were purchased. A travel voucher filed by Respondent indicates he left Tallahassee for Inglis at 10:00 a.m. on July 22, 1981, and returned to Tallahassee on July 24 at 4:00 a.m. There was $100 in per diem paid for this trip but no investigative report was filed for this period indicating travel to Inglis. The vehicle cost report shows travel from Tallahassee to Key West on July 19, Key West to Inglis on July 22 and return from Inglis to Tallahassee on July 23. On July 20, 1981, Respondent purchased 32.9 gallons of gasoline in Quincy. On July 25, 1981, Respondent purchased 33 gallons of gasoline in Quincy, Florida. On July 28, Respondent purchased 14.3 gallons of gasoline in Quincy. Respondent's travel voucher indicates he returned to Tallahassee at 4:00 a.m. on July 24. His itinerary indicates he was off duty on July 24, worked 7 hours on July 25, was off duty July 26, and worked 5 hours in Tallahassee on July 27. Respondent's vehicle cost report indicates his vehicle was idle on these dates except for trips to Tallahassee on July 25 and July 27. 230 miles were reported as driven during this period and 14.3 gallons of gasoline were purchased. On July 24, 1981, Respondent claimed investigative expense money. His itinerary for July 24, 1981, indicates he was off duty on July 24. On August 1 and 2, Respondent claimed investigative expense money of $8.75 and $6.50 respectively. Respondent's itinerary shows he was off duty both of these days. Respondent submitted no vehicle cost information for the period August 1 to August 10. The last logged mileage on July 31, 1981, was 52,282 and the next logged mileage was 53,525 on August 10. 1,243 miles were reported as driven during this period and 950 miles were unaccounted for. On August 6, 1981, Respondent purchased 37 gallons of gasoline in Quincy, Florida. Respondent's itinerary indicates he was off duty August 1 through 5. The July 6 purchase was not logged on the vehicle cost report and no receipts were turned in for the purchase. Respondent's travel voucher indicates he left Tallahassee for Inglis at 11:00 a.m. on August 6. His investigative trip report indicates he arrived in Inglis at 4:30 p.m. on August 6 and returned to Tallahassee on August 10 at 8:30 p.m. The distance from Tallahassee to Inglis round trip is 290 miles. The Respondent purchased 14.2 gallons of gasoline in Otter Creek and 31.9 gallons of gasoline in Crystal River on August 10, 1981. The purchase in Otter Creek was not recorded on the vehicle cost report. On September 2, 4, and 8, respectively, Respondent purchased 23.2 gallons of gasoline, 29 gallons of gasoline, and 27.4 gallons of gasoline in Quincy, Florida. Simultaneous with the purchase of 27.4 gallons on September 8, the Respondent also purchased 14.9 gallons of gasoline in Quincy. An itinerary filed by the Respondent indicates he was off duty from September 1 through September 3, worked 8 hours in Tallahassee on September 4, and was off duty September 5 through September 9. The vehicle cost report reflects that Respondent's government truck was idle during this time period except for the trip to Tallahassee on September 4. The 14.9 gallons of gasoline purchased on September 8 were not recorded on the vehicle cost report and no receipts were turned in for this purchase. 632 miles were recorded as driven and 94.5 gallons of gasoline were purchased during this time period. Respondent's itinerary indicates he worked 7 hours on September 21, and the vehicle cost report indicates Respondent's vehicle was in Levy County on September 21. However, Respondent's trip report and travel vouchers show that he returned to Tallahassee at 10:00 p.m. on September 20. Respondent's travel voucher reflects he left Tallahassee at 2:00 p.m. on September 24 en route to Inglis. His investigative trip report states that Respondent arrived in Inglis at 6:00 p.m. on September 24 and went back and forth from Inglis to Floral City until September 29. Respondent's travel voucher and trip report state that he returned to Tallahassee at 7:00 p.m. on September 29. However, an additional day of per diem for September 30, was added after the last entry on September 29. On October 1, 1981, Respondent purchased 23 gallons of gasoline in Quincy. Respondent's travel voucher stated he returned from Inglis at 7:00 p.m. on September 29 and the recorded ending mileage was 59,529. Respondent's itinerary report indicates he worked in Tallahassee 6 hours on September 30 and 10 hours on October 1. The recorded ending mileage on October 1 was 59,870. 341 miles miles were recorded as driven during this period and 23 gallons of gasoline were purchased. On October 6, Respondent's itinerary report indicates he worked 6 hours. His vehicle cost report for the same date reflects his vehicle was idle that date. Respondent's travel voucher indicates he left Tallahassee at 5:30 a.m. en route to Cross City and returned to Tallahassee at 11:00 p.m. the same day. Respondent's itinerary report indicates he was on duty 3 hours that date. Respondent's travel voucher states that he left Tallahassee at 5:30 a.m. on October 13, en route to Cross City and returned at 11:30 p.m. the same day. His itinerary report shows Respondent was off duty on October 13. The vehicle cost report indicates travel from Quincy to Cross City on both October 12 and October 13. On October 15, 1981, Respondent purchased 23.8 gallons of gasoline in Chiefland, Levy County, Florida. His itinerary report for the same date indicates he was off duty. The vehicle issued to Respondent was a four-cylinder Toyota pickup truck with dual fuel tanks. This truck was to be used for official state business only.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a Final Order finding Respondent guilty of violating Section 943.145(3)(c), Florida Statutes (1981) , and revoking Respondent's law enforcement officer certificate. DONE AND ENTERED this 27th day of March, 1984, at Tallahassee, Florida. MARVIN E. CHAVIS, 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 27th day of March, 1984. COPIES FURNISHED: Dennis S. Valente, Esquire Division of Criminal Justice Standards and Training Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Grady Henry Atwell Post Office Box 667 Quincy, Florida 32351 Robert R. Dempsey, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Daryl G. McLaughlin, Director Division of Criminal Justice Standards and Training Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue in this case is whether the Respondent correctly assessed a fuel use tax or civil penalty against Petitioner for violations of Sections 207.004, and 316.545, Florida Statutes, and Chapter 320, Florida Statutes, for operating a commercial vehicle on a highway in the State of Florida without vehicle registration and fuel tax registration to operate in the state.
Findings Of Fact On June 1, 1991, a commercial vehicle, operated by Unruh Fab, Inc., was stopped on I-10 in Escambia County, Florida at a Department of Transportation weight station. The weight station is the last exit in Florida for westbound vehicles and is the first exit in Florida for eastbound vehicles. The vehicle was not displaying a fuel use tax device, as required by Section 207.004, Florida Statutes, for its interstate operations and was not registered to operate in the State of Florida as required by Chapter 320, Florida Statutes. The driver did not present any fuel use tax registration documentation or International Registration Plan (IRP) registration as an interstate apportioned vehicle.1/ The Department of Transportation Inspector issued a temporary fuel use permit and an I.R.P. trip permit to Respondent to allow the vehicle to proceed on its way. The total cost of the temporary permits was $75.00. The owner of the vehicle was assessed a $50.00 civil penalty for violation of Chapter 207, Florida Statutes. See, Section 316.545(4), Florida Statutes. Additionally, while the truck was at the weight station, the Department of Transportation Inspector weighed the vehicle. The truck weighed 42,920 pounds. Under Section 316.545, Florida Statutes, Petitioner's vehicle's weight could not exceed 35,000 pounds. Petitioner's vehicle exceeded the 35,000 pound legal weight by 7,920 pounds. A penalty of 5 cents a pound was assessed for each pound over the legal weight resulting in a penalty of $396.00.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered finding that the fee and penalty totaling $521.00 was correctly assessed Unrah Fab, Inc., by the Department of Transportation, under provisions of Sections 207.004 and 316.545, Florida Statutes, and Chapter 320, Florida Statutes. DONE and ENTERED this 1st day of June, 1992, in Tallahassee, Florida. DIANE CLEAVINGER, 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 1st day of June, 1992.
The Issue Did the Respondent operate an unregistered commercial truck in Florida? Did the Petitioner correctly assess penalties of $4,101 pursuant to Section 316.545, Florida Statutes, regulating operation of commercial vehicles on a highway in the State of Florida?
Findings Of Fact On April 3, 1992, Beverly Griffin inspected and weighed two commercial vehicles owned and operated by the Respondent at the Sneads, Florida weigh station. The drivers produced the vehicles' Wisconsin apportioned registration, but the IRP permits and trip tickets were expired. The vehicles were weighed. One weighed 76,000 pounds, and the other weighed 76,020 pounds. The Respondent admitted the violation; however, the Respondent's representative indicated in his plea of mitigation that the company had obtained required permits and brought its equipment into the state on the trucks; however, it had taken longer than expected to complete the work with the machinery the trucks were carrying, and the permits had expired before the trucks and equipment could leave the state. The Department levied a fined in the amount of $4,101, at 5 cents/ pound for the overweight trucks plus $80 for new trip tickets, $90 for temporary fuel use permits, and $100 penalty for not having current fuel use permits. The Respondent paid the penalties. The statutes governing the operation of motor vehicles provide for strict liability against the owner of a vehicle.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered finalizing assessment of the $4,351 in penalties against the Respondent pursuant to Section 316.545, Florida Statutes. DONE and ENTERED this 17th day of November, 1992, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 1992. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Gary Pomeroy, Vice President The Big Red Machinery Movers, Inc. Post Office Box 274 Butler, WI 53007 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458
Findings Of Fact Respondent owns and operates a Citgo Food Mart in Naples at which it sells gasoline and diesel fuel at retail, provides limited motor vehicle service, and sells food and beverage items. Petitioner issued Respondent retail dealer's fuel license #21- 000828, which authorizes Respondent to sell motor fuel at retail and requires Respondent to collect and remit to Petitioner motor fuel taxes. The principal of Respondent is Jack Stellman. He caused Respondent to purchase the business in April 1993 from the fuel wholesaler, which had purchased it from the previous retailer. The previous retailer had suffered business and personal setbacks that necessitated the sale. Mr. Stellman and his wife, Phyllis, who claims not to be an officer or employee of Respondent despite her considerable involvement, have contributed much personal capital and labor to the new business. Immediately after taking over the business, Mr. and Mrs. Stellman discarded outdated inventory, fired a number of dishonest employees, eliminated prostitution that had been taking place on the premises, added new equipment such as a pressure fryer and hood system, and started advertising. Cash flow was a problem for Respondent from the start. The major improvements were completed by the fall of 1994. By early 1994, however, Mr. Stellman had quit taking a salary from Respondent. Over the 19-month period from August 1993 through March 1995, Mr. and Mrs. Stellman borrowed $140,000 from a variety of sources, including from their retirement plan, from relatives, and on property that they own individually. Despite these infusions of cash, Respondent was unable to stay current with certain important creditors, such as their fuel supplier, the Internal Revenue Service, and Petitioner. In August 1993, the fuel wholesaler began to demand payment on delivery, instead of in 30 days, as it had done previously. The wholesaler shortened the credit terms on fuel after Respondent fell behind in payments shortly after beginning operations. In any event, the change in credit terms involved monthly volumes of typically 40,000-50,000 gallons. The loss of use of money corresponding to the wholesale purchase of this amount of fuel does not begin to explain the tax deficiencies that Respondent ran up. Respondent's deficiencies on its motor fuel tax also began in August 1993. Returns are filed the month following the month for which the motor fuel tax is due. For August 1993, Respondent filed a return in which it underremitted the motor fuel tax by $62.15. The next month, Respondent filed a return in which it remitted $2000 and left an unremitted balance of $2867.49. The next month, Respondent filed a return, but remitted none of the $6077.28 of motor fuel tax due. For November 1993, the next month, Respondent filed a return and remitted $2000, leaving an unremitted balance of $3278.78. For December 1993 through July 1994, Respondent filed returns but remitted no tax. The total tax deficiency for this eight-month period was $58,300.87, or an average of $7287.61. In the 12-month period ending with the July 1994 return, Respondent had failed to remit a total of $70,586.57. For the August, September, and October 1994 returns, Respondent made partial remittances. For August and September, Respondent left unremitted balances of only $15.34 and $84.30, respectively, remitting a total of $11,315.49. For October, Respondent remitted $4827.90, leaving an unremitted balance of $2623.98. For November 1994, Respondent filed a return, but failed to remit any of the $5983.74 due. In the summer of 1994, the Stellmans finally sold their house in New York, but realized less cash than they had expected. In October 1994, the Stellmans applied for a loan on their Florida residence. During the same month, they began negotiations with Texaco to convert their Citgo convenience store into a Texaco outlet. The Stellmans believed that they would receive $225,000 from Texaco, which would be sufficient to pay their fuel wholesaler and Petitioner, convert their service operation into more store space, and acquire additional inventory and working capital. The record does not permit a finding whether $225,000 would cover all of these items. In any event, the Texaco negotiations did not proceed quickly. The fuel wholesaler threatened litigation over the prospective cancellation of its contract to supply Respondent with fuel and oil. And Petitioner's representatives were increasingly unsatisfied with Respondent's lack of progress in paying back taxes. Repeatedly, the Stellmans promised payments that did not materialize. At the same time, Respondent was not remitting motor fuel taxes currently. For December 1994 through March 1995, Respondent did not even file returns. During this four-month period, motor fuel taxes due and unremitted totalled $32,106.59. The total of unremitted motor fuel taxes for August 1993 through March 1995 was now $111,400.52, exclusive of penalties and interest. Penalties for the underremittances for the period August 1993 through March 1995 totalled $60,284.67. Interest for the same period totalled $14,042.88. The total of tax, penalties, and interest was thus $185,728.07. Respondent later reduced this deficiency by paying a total of $323.48 of penalties and $4154.52 of interest, so the current totals are tax of $111,400.52, penalties of $59,961.19, and interest of $9888.36, for a total of $181,250.07. The interest is current through August 1, 1995, and the daily interest thereafter is calculated by multiplying the tax deficiency by 0.000328767. Mr. and Mrs. Stellman claim that the $185,728.07 deficiency arose due to business setbacks, but the business setbacks that they have shown do not account adequately for the deficiency. The Stellmans clearly began the business badly undercapitalized. Mr. and Mrs. Stellman attribute part of the financial problems to bad debts suffered by Respondent. From August 1993 through the end of 1993, the Stellmans pursued seasonal business by offering liberal credit terms, which eventually resulted in worthless accounts receivable. However, the total bad debt was only $15,000. Although hardly meriting mention, except perhaps to reveal their lack of insight, the Stellmans also complain that they lost cash flow due to ill- advised advertising deals into which they entered where they traded fuel for advertising. Even ignoring the benefits derived from such agreements, Respondent traded only about $4000 worth of fuel under these arrangements. Together, these claimed business setbacks of no more than $20,000 constitute less than 18 percent of the taxes, penalties, and interest owed Petitioner. The amount of motor fuel tax that Respondent would have collected on $20,000 worth of fuel would be around $1500. With more zeal than business acumen, the Stellmans attacked the challenge of a new business. Their lack of business sophistication, not fraud, led the Stellmans to convert the motor fuel taxes from current payables to long- term debt, to underreport the amount of fuel pumped on 12 of 19 returns filed with Petitioner during the period in question, and repeatedly to file returns late, so as to lose the collection allowance normally given retail dealers. The unwillingness of Petitioner to become a long term creditor was manifested dramatically when, on May 4, 1995, Petitioner issued an emergency order suspending Respondent's retail dealer's fuel license. The emergency suspension took place after a meeting of Petitioner's Emergency Response Group, which, after reviewing the facts, determined that this was the best course of action to prevent the loss of motor fuel tax. The Stellmans complain that Petitioner did not give them enough time to try to pay the tax deficiencies. However, the record does not justify the Stellmans' demand that Petitioner share their confidence in their ability to take care of this substantial debt. As late as mid-February 1995, the Stellmans were still making unfulfilled promises to pay, as when they assured a Naples employee of Petitioner that Respondent would pay $10,000 by mid-April. This sum was not paid, nor were the motor fuel taxes that Respondent collected at the time even paid currently. In other words, Respondent was still taking the motor fuel tax that it was collecting from customers and applying it to other debts. The Stellmans never told Petitioner what they expected to net from the Texaco agreement. They never explained why the negotiations took so long to conclude. In early 1995, Petitioner's representatives justifiably saw: 1) new financing never resulted in any reduction of the outstanding deficiencies and 2) the outstanding deficiencies continued to grow as Respondent continued to collect motor fuel tax and apply it to other purposes. The record is not entirely clear as to the status of Respondent with respect to unremitted or unpaid taxes in April 1995 and following. Respondent owed $34,861.20 in unremitted sales tax, as of May 1, 1995. However, it appears more likely than not that, during at least part of the period subsequent to May 1, 1995, Respondent remitted and paid to Petitioner its currently accruing tax obligations. With the cessation of fueling operations, these obligations arose from sales of convenience store items, as these sales were unaffected by Petitioner's action against Respondent's retail dealer's fuel license. Since the suspension of the license, the Stellmans have supplied Petitioner with accurate, current information concerning Respondent's tax liabilities, at least to the extent that they possess such information. Respondent's financial condition is precarious, at best. Even assuming that the Stellmans were willing to continue to contribute more money to Respondent, there is nothing in the record to suggest that they have the financial resources to contribute substantial sums beyond a large fraction of the total currently due Petitioner in this case. Such a payment would probably come from a combination of the Stellmans' assets and the assets of friends and family. Their obvious failure to prepare and follow a feasible business plan does not bode well for Respondent's future ability to operate and, at the same time, retire what has become a substantial financial liability owed to Petitioner.
Recommendation It is RECOMMENDED that the Department of Revenue enter a final order: 1) suspending Respondent's retail dealer's fuel license for the lesser of six months from the date of the final order or until Respondent pays the sums described in paragraphs 38 and 39 and executes a promissory note with the conditions set forth in paragraphs 38 and 39 and 2) revoking Respondent's retail dealer's fuel license at the expiration of six months from the date of the final order unless Respondent has paid the above-described sums and entered into the above-described promissory note. ENTERED on October 27, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on October 27, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1-4: adopted or adopted in substance. 5-7: rejected as recitation of evidence and subordinate. 8: adopted or adopted in substance. 9-10: rejected as subordinate. 11: adopted or adopted in substance. 12-18: rejected as subordinate. 19-21: adopted or adopted in substance. 22-23: rejected as subordinate. 24-26: adopted or adopted in substance except the taxpayer is Respondent, not Mr. Stellman individually. 27: rejected as subordinate. 28: adopted or adopted in substance. 29-35: rejected as subordinate. 36-37: adopted or adopted in substance. 38: rejected as subordinate. 39: rejected as unsupported by the appropriate weight of the evidence. 40-43: adopted or adopted in substance. 44: rejected as recitation of evidence. Rulings on Respondent's Proposed Findings 1-7: adopted or adopted in substance, although the "great expense" in paragraph 7 is rejected as unsupported by the appropriate weight of the evidence. 8-10: rejected as unsupported by the appropriate weight of the evidence. The financial problems were minor. 11: adopted or adopted in substance to the extent relevant. 12-13: rejected as subordinate. 14: rejected as speculative. 15: rejected as unsupported by the appropriate weight of the evidence. 16: rejected as irrelevant. 17: adopted or adopted in substance. 18-19: rejected as subordinate. 20: adopted or adopted in substance. 21: rejected as unsupported by the appropriate weight of the evidence except that the filings is rejected as irrelevant. COPIES FURNISHED: Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100 Francisco Negron, Jr. Assistant Attorney General Office of the Attorney General The Capitol, Tax Section Tallahassee, FL 32399-1050 Christian B. Felden Felden and Felden 2590 Golden Gate Parkway Suite 101 Naples, FL 33942
