Findings Of Fact In 1991, Petitioner owned a new 1991 Ford conversion van which he felt was a lemon as that term is defined in the Florida Lemon Law. In pursuit of his legal rights under the Lemon Law, Petitioner made a request for arbitration of his automotive problem. Petitioner first applied for arbitration pursuant to the Lemon Law on December 31, 1991. Petitioner's application was incomplete because it failed to show that Petitioner had properly addressed and mailed Ford Motor Company a Motor Vehicle Defect Notification. The Department returned the arbitration request to Petitioner on January 14, 1992. The accompanying letter informed Petitioner that he was required to submit, by certified mail, a Motor Vehicle Defect Notification form to the "Ford Motor Company, Attention: Customer Relations, Post Office Box 945500, Maitland, Florida 32794 Petitioner was instructed to supply the Department with evidence of his compliance with the Notice requirement providing a proper receipt along with his application within 30 days of Petitioner's receipt of the January 14, 1992, letter. Petitioner failed to respond or return his application within the 30 days. No evidence was ever submitted to the Division to show that Mr. Thomas mailed the Motor Vehicle Defect Notification Form to the Ford Motor Company as instructed by the January 14, 1992, letter from Respondent and as required by statute. Similarly, no evidence was presented at the hearing that the form was ever mailed to the appropriate entity. After 30 days had lapsed from the January 14, 1992 letter, the Department could have "rejected" Petitioner's request for arbitration by sending him a notice of rejection as required by Rule 2-32.009(c)(2), Florida Administrative Code. However, the Division did not send a rejection notice to Petitioner at that time. Instead, Petitioner's file was closed on March 13, 1992, with no further action taken. Therefore, the time period for amending Petitioner's first application did not expire and remained open at least through January, 1993. At the hearing, Petitioner claimed that he did not respond to the Division's request for more information because he was mentally disabled and was hospitalized for 45 days between December 1991, and October 1992, and that the American's with Disabilities Act requires that an exception to compliance with the Rules and Statutes be given to him. However, the evidence did not demonstrate that Petitioner was disabled during the entire period of time after the Division's request for information. Additionally, Petitioner did not request an extension of his response time as is required by the Florida Administrative Code. Moreover, since neither the rules nor the statutes provide for such an ADA exception, the Division cannot unilaterally fashion such an exception without engaging in rulemaking under Chapter 120. Such an exception must be addressed by the Florida Legislature or in rulemaking. Therefore, Petitioner is not entitled to any exception to the Lemon Law requirements because of his disability or hospitalizations. Ten months later, On October 5, 1992, Petitioner again applied for Lemon Law arbitration. Petitioner's application was again incomplete and the Department requested more information. However, because the Division did not send Petitioner a formal rejection letter, the October 5, 1992, application related back to the first application filed December 31, 1991. Petitioner supplemented the second application with information showing that his vehicle had reached 24,000 miles in September of 1991. On November 13, 1992, Respondent notified Petitioner that his request for arbitration was untimely because his request did not fall within the statutory period allowed once his vehicle reached 24,000 miles. A rejection notice was contained in the Department's letter of November 13, 1992, thereby beginning the 30 day time period for any amendments to either of Petitioner's applications. As indicated earlier, the 30 day time period expired without Petitioner submitting any evidence that he had mailed Ford Motor Co. a Vehicle Defect Notification form. Therefore, Petitioner's application remained incomplete at the time any request for arbitration could have been made expired. Petitioner is therefore not entitled to arbitration under the Florida Lemon Law. Finally, after Petitioner had requested arbitration, Petitioner sold and replaced the conversion van prior to the hearing. Therefore, Petitioner can not present the van to Ford Motor Co. for one last opportunity to repair. Such presentation is a condition precedent to arbitration which Petitioner cannot meet. Additionally, by selling his vehicle, Mr. Thomas has abandoned his Lemon Law Claim, in that he no longer has an ongoing dispute with Ford Motor Company that requires arbitration and his request for such is moot.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Florida Department of Agriculture and Consumer Services denying Mr. Andrew Thomas' request for Lemon Law arbitration. DONE AND ENTERED this 22nd day of September, 1994, in Tallahassee, Leon County, Florida. DIANNE 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 22nd day of September, 1994.
The Issue The issue for determination in this proceeding is whether Petitioner timely filed her request for arbitration under Chapter 681, Florida Statutes. 1/
Findings Of Fact Respondent is the governmental agency responsible under Chapter 681 for receiving and evaluating consumer complaints and requests for arbitration that are filed against automobile manufacturers and dealers doing business in the state. Respondent is required to determine if a consumer's request for arbitration should be referred to the Attorney General for arbitration. Petitioner is a consumer within the meaning of Section 681.102(4). Petitioner purchased a motor vehicle for personal use and took delivery of the motor vehicle on September 15, 1992 (the "motor vehicle"). 2/ Petitioner filed two requests for arbitration for her motor vehicle. Petitioner filed her first request for arbitration on February 22, 1995. She filed her second request for arbitration on May 16, 1995. By letter dated March 7, 1995, Respondent notified Petitioner that her first request for arbitration lacked certain required information and returned the request for arbitration to Petitioner. Petitioner voluntarily withdrew her first request for arbitration on April 12, 1995. Respondent closed its file regarding the first request for arbitration. On May 16, 1995, Petitioner filed her second request for arbitration. Pursuant to a letter dated May 19, 1995, Respondent denied Petitioner's second request for arbitration on the grounds that it was not timely filed. Petitioner is generally required under Chapter 681 to file her request for arbitration within the time defined in Section 681.102(9) as the "Lemon Law rights period" (the "initial rights period"). The initial rights period expires on the earlier occurrence of two dates. The first date is 18 months from the date of delivery. The second date is the date that the motor vehicle accumulates 24,000 miles. The dealer delivered the motor vehicle to Petitioner on September 15, 1992. Eighteen months from the date of delivery was March 15, 1994. The motor vehicle accumulated 24,000 miles on September 16, 1993. The initial rights period expired on September 16, 1993, because that date occurred earlier than March 15, 1994. The initial rights period is extended, pursuant to Section 681.104(3)(b), for six months if there are any uncured nonconformities (the "extension period"). Petitioner experienced uncured nonconformities in the gear shift mechanism of the motor vehicle. The gear shift arm buzzes when the motor vehicle is driven in a forward gear. The gear shift arm jumps out of gear when the motor vehicle is being driven in reverse. 3/ Petitioner took the motor vehicle in for repair four times for the problem with the gear shift mechanism. The dealer attempted to repair the problem on: August 6, 1992, when the vehicle had accumulated 3,987 miles; September 16, 1993, when the vehicle had accumulated 24,000 miles; 4/ January 9, 1995, when the vehicle had accumulated 38,568 miles; and January 30, 1995, when the vehicle had accumulated 39,087 miles. The dealer never repaired the problem with the gear shift mechanism. The motor vehicle accumulated 24,000 miles on September 16, 1993. The extension period extended the time in which Petitioner was entitled to file her request for arbitration from September 16, 1993, until March 16, 1994. Respondent added 51 days to the time in which Petitioner was allowed to file a request for arbitration to reflect the period of time from the date Petitioner filed her first request for arbitration, on February 22, 1995, until she voluntarily withdrew her first request for arbitration on April 12, 1995. Fifty-one days from the last date of the extension period, March 16, 1994, expired on May 7, 1994. Petitioner filed her second request for arbitration on May 16, 1995, approximately one year after May 7, 1994. Petitioner did not file her second request for arbitration in a timely manner. 5/ Petitioner's second request for arbitration was not filed in a timely manner under the alternative deadline for filing a request for arbitration. Even if it is assumed that the motor vehicle did not accumulate 24,000 miles until 18 months after the date of delivery of the vehicle, Petitioner did not file her second request for arbitration in a timely manner. 6/ The dealer delivered the motor vehicle on September 15, 1992. The initial period of 18 months expired on March 15, 1994. The extension period expired on September 15, 1994. Fifty-one days from the expiration of the extension period was November 5, 1994. Petitioner did not file her request for arbitration until May 16, 1995.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's request for arbitration as not timely filed. RECOMMENDED this 31st day of October, 1995, in Tallahassee, Florida. DANIEL MANRY 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 31st day of October, 1995.
The Issue Whether the Respondents' alcoholic beverage and tobacco license/permit number 74-00388 is subject to the assessment of a civil penalty, or should be suspended or revoked because of the sale of an alcoholic beverage to a person under the age of twenty-one years?
Findings Of Fact At all times relevant to this proceeding, the Respondents have been the holders of alcoholic beverage license/permit number 74-00388, series 2-COP, for the premises located at 4020 B Nova Road, Port Orange, Florida. At all times relevant to this proceeding, the Respondents were doing business as the Cheese and Specialty Corner (hereinafter referred to as the "Corner"). John T. Grothe is a full-time electrical engineer employed by General Electric. Mr. Grothe helped Oki Grothe, his wife, operate the business after working hours at General Electric and on his days off. Mrs. Grothe was primarily responsible for running the Corner. The Respondents had a policy of not selling alcoholic beverages to anyone under the legal drinking age. On September 4, 1987, Mr. Grothe was working at the Corner. Mr. Grothe was behind the counter near the front of the Corner. Detective Patrick Girvan entered the Corner on September 4, 1987. Detective Girvan was a Port Orange, Florida, police detective at the time but was not wearing his uniform. Shortly after Detective Girvan entered the Corner, Officer Heather Waskiewicz entered the Corner. Officer Waskiewicz was also a Port Orange police officer on September 4, 1987. Officer Waskiewicz was not wearing a uniform. Officer Waskiewicz, upon entering the Corner, went to the left of the Corner to a large wall cooler and began looking at the contents of the cooler. The area of the Corner where Mr. Grothe was located was not busy. Only Officer Waskiewicz, Detective Girvan and another Port Orange police officer who had entered the Corner were in the area where Mr. Grothe was working. There were other customers in another area of the Corner where Mrs. Grothe was working. Mr. Grothe asked Officer Waskiewicz if she needed any help. Officer Waskiewicz indicated that she did not. Officer Waskiewicz selected a sealed bottle labeled Florida Wine Cooler from the cooler and took it to the counter where Mr. Grothe was standing. Officer Waskiewicz paid Mr. Grothe for the Florida Wine Cooler and Mr. Grothe put it into a paper bag. On the label of the Florida Wine Cooler it was indicated that the bottle contained 6 percent alcohol. The first ingredient listed on the label of the bottle was orange wine. At no time did Mr. Grothe ask Officer Waskiewicz her age or ask her for proof of her age. Nor did Officer Waskiewicz make any representation to Mr. Grothe concerning her age. Officer Waskiewicz handed the paper bag with the sealed Florida Wine Cooler in it to Detective Girvan, who had witnessed the sale. Detective Girvan then notified Mr. Grothe that he had sold an alcoholic beverage to a person under the legal drinking age. Criminal charges relating to the sale were brought against Mr. Grothe. Officer Waskiewicz was born on January 11, 1968. On September 4, 1987, Officer Waskiewicz was nineteen years of age. Officer Waskiewicz was wearing black, high-heeled pumps and a black belt, a long-sleeve blouse and a skirt at the time of the sale of the wine cooler by Mr. Grothe. She described her dress as "casual" and as "appropriate for a work environment." Her hair was worn down on one side and in a ponytail on the other side. She wore some makeup. Mr. Grothe believed that Officer Waskiewicz at the time of the sale had the bearing, visage and general appearance of a woman over the age of 21 years. Officer Waskiewicz is sufficiently young enough in appearance, however, even at the age of 20 years, that it could not be concluded conclusively that she was 21 years of age or older. Officer Waskiewicz had never bean in the Corner prior to September 4, 1987, and had never purchased or attempted to purchase alcohol at the Corner prior to the purchase of the Florida Wine Cooler on September 4, 1987. The Corner was closed subsequent to September 4, 1987, and is no longer in operation. The Respondents have not been charged with any other violations relating to their beverage license. The Department has a policy of imposing a $1,000.00 administrative fine and a 20-day suspension of license on licensees for the first offense of selling alcoholic beverages to a minor.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondents be found guilty of violating Section 562.11(1)(a), Florida Statutes. It is further RECOMMENDED that the Department suspend the Respondents' alcoholic beverage license for a period of twenty (20) days and impose a civil penalty of $500.00 on the Respondents. DONE and ENTERED this 15th day of November, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3080 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-2. 2 7 and 11-14. The evidence failed to prove that Officer Waskiewicz purchased a "Seagram's Wine Cooler" (it was a Florida Wine Cooler) or that the label on the bottle indicated that the alcohol level was 4 percent (it was 6 percent). 3 11 and 16. 4 6 and 12. Summary of the Respondents' position. See finding of fact 15. See finding of fact 19. The Respondents' Proposed Findings of Fact The Respondents' proposed findings of fact have been accepted in paragraphs 1-5, 9, 11-12, 17 and 19. COPIES FURNISHED: Elizabeth Masters Deputy General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Sylvan A. Wells, Esquire Post Office Box 5307 Daytona Beach, Florida 32018-1307 Leonard Ivey, Director Department of Business Regulation Division of Alcoholic Beverages & Tobacco 725 South Bronough Street Tallahassee, Florida 32301-1927 Van B. Poole, Secretary Department of Business Regulation Division of Alcoholic Beverages & Tobacco 725 South Bronough Street Tallahassee, Florida 32301-1927 Joseph A. Sole Department of Business Regulation Division of Alcoholic Beverages & Tobacco 725 South Bronough Street Tallahassee, Florida 32301-1927
The Issue This issue on this case is whether the Petitioner filed a timely Request for Arbitration by the Florida New Motor Vehicle Arbitration Board.
Findings Of Fact On December 30, 1993, William Coyle took delivery of a new 1994 Pontiac Bonneville. At the time the car was delivered to Mr. Coyle, the odometer indicated that the vehicle had been driven five miles. Soon after taking delivery of the vehicle, Mr. Coyle began experiencing problems with the car, including failure of the car ignition on several occasions, and a malfunctioning oil pressure indicator. On repeated occasions, Mr. Coyle returned the car to the dealer for repair. According to Mr. Coyle, the dealer was unable to fix the problems with the car. On or about July 7, 1995, Mr. Coyle filed a Motor Vehicle Defect Notification form. Although Mr. Coyle mistakenly dated the form as "7/7/94," the evidence establishes that the form was actually filed in 1995. Filing a Motor Vehicle Defect Notification form triggers a final opportunity for a vehicle manufacturer to correct the alleged defect. One copy of the notification form goes to the manufacturer. A second copy of the form goes to the Office of the Florida Attorney General. After the Motor Vehicle Defect Notification form was filed, the vehicle apparently was not repaired to Mr. Coyle's satisfaction. As set forth in Chapter 681, Florida Statutes, a consumer's rights under the Lemon Law extend for 18 months or 24,000 miles, whichever occurs first, and may possibly be extended an additional 6 months for those problems which have not been corrected in the initial period. Based on the repair records, Mr. Coyle's vehicle had been driven in excess of 24,000 miles by October 7, 1994. Assuming that Mr. Coyle was entitled to a six month deadline extension as provided by law, Mr. Coyle's Lemon Law rights expired on April 7, 1995. The applicable statute provides a period of six months following the expiration of the Lemon Law rights period by which a consumer must file a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board. Mr. Coyle's Request for Arbitration was required to be filed not later than October 7, 1995. Mr. Coyle filed a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board on December 12, 1995. By letter dated December 28, 1995, Mr. Coyle was notified by the Department of Agriculture and Consumer Services, that his request for arbitration was being rejected. As grounds for the rejection, the letter states: The lemon law rights period, as defined by Chapter 681, F.S., is 18 months or 24,000 miles, whichever occurs first, and may possibly be extended an additional 6 months for those problems which have not been corrected in the initial rights period. The Request for Arbit- ration should be received by this office with- in 6 months of the conclusion of the lemon law rights period or any extended time allowances. The attached Invoice number 6946, dated 10-07- 94, reflects that the mileage at the time of that repair to be 27,494. Since 24,000 miles apparently were exceeded prior to 10-07-94, your initial rights period ended at some point before that date. If a 6 month extension was allowed following the end of your rights period, the expiration of that extension would have occurred prior to 04-07-95. This would require that your Request for Arbitration be received by this office prior to October 07, 1995. Your application was signed December 05, 1995, post- marked 12-07-95, and received by this office 12-12-95. Reviewing all these dates, it is concluded that your application was not sub- mitted in a timely manner and must be rejected.... The evidence establishes that Mr. Coyle's Request for Arbitration by the Florida New Motor Vehicle Arbitration Board was not filed by the proper deadline and must be rejected. Mr. Coyle asserts that he filed a Motor Vehicle Defect Notification on or about July 7, 1995, and that such notice is sufficient to qualify as a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board. A Motor Vehicle Defect Notification is a separate document from a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board. The forms are filed with different agencies. The filing of a Motor Vehicle Defect Notification does not constitute a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order denying Petitioner's request for arbitration by the Florida New Motor Vehicle Arbitration Board. DONE and ENTERED this 31st day of May, 1996 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM, 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 31st day of May 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0744 The Petitioner did not file proposed findings of fact. To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the Respondent. The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 1, 10. Rejected, unnecessary. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 William Coyle, pro se 2403 Vandervort Road Lutz, Florida 33549 Rhonda Long Bass, Esquire Department of Agriculture and Consumer Services Mayo Building, Room 515 Tallahassee, Florida 32399-0800
The Issue The issue in the case is whether the Polk County Work Force Development Board (Respondent) discriminated against David J. Sedivi (Petitioner) on the basis of disability when the Respondent terminated the Petitioner's employment. The Petitioner asserts that the termination was based on a disability. The Respondent asserts that the position for which the Petitioner was employed was eliminated for budgetary reasons and due to concerns expressed by program auditors that the Petitioner's job function was statutorily prohibited.
Findings Of Fact The Respondent is a regional workforce board created pursuant to Section 445.007, Florida Statutes (2004). The Respondent contracts with, and monitors the performance of, vendors who provide various employment-related services to qualified persons. At all times material to this case, the Respondent was annually audited by KPMG, an accounting firm contracted with a State of Florida agency responsible for oversight of the regional workforce boards. One of the programs for which the Respondent was responsible was the "Citrus Cars" program. Citrus Cars provided economical used vehicles to persons for whom lack of transportation was an obstacle to employment. The used vehicles were obtained and rehabilitated by Citrus Cars, and then leased to qualified individuals who eventually own the vehicles. The Respondent owns the non-profit corporation, Citrus Cars of Polk County, Inc., responsible for operation of the Citrus Cars program. In January 2003, KPMG auditors advised the Respondent that its operation of the Citrus Cars program was contrary to a statutory prohibition against the provision by regional workforce boards of direct services to clients. KPMG specifically cited the issue in the 2003 audit report. The Respondent disagreed with the KPMG opinion related to operation of Citrus Cars, and attempted unsuccessfully to convince the auditors that the Respondent's operation of the program was permissible under the statute. The Respondent had an existing contract with a private vendor ("A.C.S.") involved with the Citrus Cars program, but KPMG auditors apparently believe that the Respondent's relationship with the program was contrary to the statute. Nonetheless, the Respondent continued to operate the Citrus Cars program during 2003. In May 2003, the Petitioner began employment with the Respondent as a customer service officer for the Citrus Cars program. Prior to accepting employment with the Respondent, the Petitioner was employed by A.C.S. At all times material to the case, the Petitioner suffered from health issues which resulted in significant absence from the workplace. A three-month probationary period was extended for an additional three months by memorandum dated August 1, 2003, and written by Tom Hornack, the Respondent's Assistant Director. A primary reason for the extension was that Mr. Hornack had assumed supervisory responsibilities for the Citrus Cars program shortly before the end of the probationary period and wanted additional time to evaluate the Petitioner's performance. Although the memorandum includes a very positive evaluation of the Petitioner's efforts, the memo states as follows: In all fairness to you and Polk Works, there has not been ample time for you to work unaided without the assistance of Cecelia and Mitch to allow you to be able to demonstrate sole control of the program overall. The Petitioner's health issues and absence from the workplace apparently continued to be of concern to the Respondent. By letter dated September 19, 2003, Mr. Hornack advised that "your frequent absences from July 15 to present have resulted in a programmatic hardships [sic]." The letter stated that "due to high rate of absenteeism and the demands of your position" the Respondent requested a statement from the Petitioner's physician "as to your fitness for continued employment as the Citrus Cars Customer Services Officer." The Respondent also requested that the Petitioner create a "corrective action plan" indicating the date upon which the Petitioner would return to work and the "action items that you will take to actualize the plan." Towards the end of September 2003, as the result of an infection, the Petitioner underwent amputation of a foot and portion of a leg. Thereafter, the Petitioner had a disability due to amputation of the leg and the resulting inability to walk without a prosthetic device. By letter dated October 29, 2003, Nancy Thompson, the Respondent's Executive Director, advised the Petitioner that his employment position was being eliminated. The letter indicated that the Respondent's decision was related to budgetary issues and operational costs, and stated that the responsibilities of the Petitioner's employment position would be absorbed by other staff. Ms. Thompson's testimony also indicated that the Petitioner's absence from the workplace was a factor in her decision, and was seemingly reflected in the letter's reference to other employees assuming the Petitioner's job duties. The Petitioner obtained legal representation and Ms. Thompson withdrew the proposed termination of the Petitioner's employment. By letter dated December 16, 2003, Ms. Thompson requested that the Petitioner obtain an assessment of work abilities from his physician, including a statement of any restrictions and an anticipated date of return to employment, clearly indicating that the Petitioner's return to work was possible. In January 2004, KPMG auditors again advised the Respondent that operation of Citrus Cars was contrary to the statutory prohibition against provision of direct client services by regional workforce boards, and again specifically cited the issue in the audit report. Additionally, the Respondent learned that its budget for the fiscal year beginning July 1, 2004, was reduced. By letter dated February 17, 2004, Ms. Thompson advised the Petitioner that although the information previously provided was sufficient to extend non-paid leave status for 90 days, "before I can consider your returning to work," the Petitioner was directed to provide a physician's statement identifying a "specific date" upon which the Petitioner could return to work and including a "detailed assessment" of the Petitioner's abilities and limitations as related to his position description. The letter stated that the information was required at least two weeks prior to the anticipated date of return. According to a work status form from the Petitioner's rehabilitation physician dated March 30, 2004, the Petitioner could return to regular duty on May 17, 2004. The only restriction noted on the form is the use of an assistive device for ambulation. By letter to Nancy Thompson dated April 9, 2004, the Petitioner's rehabilitation physician indicated that the Petitioner could "perform his activities at work in approximately 30-60 days time, once his physical therapy and prosthetic training is completed." By letter dated May 13, 2004, Nancy Thompson advised the Petitioner that operation of the Citrus Cars program had been "much modified," that the Respondent's role in the program was "purely finance and oversight" pursuant to the KPMG opinion, and that the responsibilities of the Citrus Cars Customer Service Officer position had been eliminated or absorbed by other staff. Ms. Thompson testified credibly that continued failure to heed the auditor's advice could have had negative repercussions on the board, and therefore total operational responsibility for the Citrus Cars program was transferred to A.C.S., and the in-house position of "Customer Service Officer" was eliminated. At the time of the hearing, the Respondent had a vacant and funded employment position. At the hearing, the Petitioner testified that he was uncertain as to the relief he was seeking, stating that "it ought to be something that's fair," but indicated that it was "difficult for me to think that I would even trust them if I went back to work because of all the things that have gone down and everything else."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by David J. Sedivi in this case. DONE AND ENTERED this 7th day of February, 2006, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Craig A. McCarthy, Esquire 361 River Chase Drive Orlando, Florida 32807 Charles W. Sell, Esquire Shuffield Lowman Gateway Center 1000 Legion Place, Suite 1700 Orlando, Florida 32801 Stacy L. Wilde, Esquire Shuffield Lowman Gateway Center 1000 Legion Place, Suite 1700 Orlando, Florida 32801 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact From October 1, 1975, up to and including April 14, 1976, the Respondent, Bobbie P. Miles, d/b/a D. J. `s Lounge, held State of Florida Alcoholic Beverage License No. 26-91, Series 2-COP, for operation at a premises of 6644 Arlington Road, Jacksonville, Florida. A copy of this license is found in Composite Exhibit No. 1, admitted into evidence. Sometime in the beginning of April, 1976, Detective Claude Locke with the Jacksonville Sheriff's Office, received information from an informant that a minor female was selling alcoholic beverages in D. J.`s Lounge. This minor female was identified as being 5 foot 7 inches tall with reddish blonde hair. Locke went to D. J.`s Lounge and was served a beer by a woman fitting that description. No other employee in the bar was serving alcoholic beverages while he was there for 45 minutes. Subsequent to his investigation of the bar, Officer Locke contacted the State of Florida, Division of Beverage, about his activities. Officers B. W. Rowe and K. A. Boyd of the Division of Beverage acting on Officer Locke's report went to D. J.`s Lounge on April 14, 1976. The officers took a seat at the bar and a white female who was playing the pinball machine went to the bar and served them alcoholic beverages by serving the beverage and taking the money and returning the change from the purchase. This person who served them had reddish blond hair and was later identified in the course of the hearing as being one Darlene Usury. After Darlene Usury served the beer to the officers she went behind the bar and poured herself a beer and began to drink that beer. Her glass of alcoholic beverage was checked by the officers on the basis of their expertise and found to be an alcoholic beverage, and is offered into evidence as Petitioner's Exhibit 3, admitted. The alcoholic beverage served them was also tasted, based upon their expertise and found to be an alcoholic beverage. There was another woman working at the bar on April 14, 1976. This woman was Donna Moody. Ms. Moody indicated that Usury was not employed in the bar and that she had never checked her identification because the owner of the bar, Bobbie P. Miles, had allowed Darlene Usury to drink on other occasions. Later in the evening of April 14, 1976, the owner and Respondent, Bobbie P. Miles, came to the bar and indicated that he had met Darlene Usury at another establishment which he was operating and had been shown an identification. This identification was a Pennsylvania license issued to Debra Yanni, and this identification showed Darlene R. Usury to be more than 18 years of age on April 14, 1976. The identification card is Petitioner's Exhibit No. 2 admitted into evidence. The identification card does not have a photograph. The identification card was initially shown to Bobbie P. Miles at the Jubille Bar a year or more before April 14, 1976. Darlene R. Usury was in fact 17 years old on April 14, 1976, at the time she served the alcoholic beverages to the beverage officers and consumed an alcoholic beverage. Darlene Usury explained that her action of serving the beer to the beverage officers was an isolated incident and she only did it to help out Donna Moody, the person in charge of the bar on that night. Bobbie P. Miles said that Darlene R. Usury was not employed on that night or on any other night. Although Darlene R. Usury had served the alcoholic beverages to Officers Rowe and Boyd, Donna Moody was also working behind the bar at that time. Officer Locke was unable to identify Darlene R. Usury as the woman who had served him alcoholic beverages on the prior occasion in April, 1976.
Recommendation It is RECOMMENDED that the licensee, Bobbie P. Miles, be fined in the amount of $150.00 for the violation as established by the Administrative Complaint. DONE and ENTERED this 1st day of August, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles F. Tunnicliff, Esquire Division of Beverage 725 Bronough Street The Johns Building Tallahassee, Florida 32304 Bobbie P. Miles pro se 6644 Arlington Road Jacksonville, Florida
The Issue The issue in DOAH Case No. 02-3648RE is whether Emergency Rules 20ER02-01, 20ER02-02, and 20ER02-03 constitute an invalid exercise of delegated legislative authority. The issue in DOAH Case No. 02-4607RP is whether Proposed Rules 20-15.001, 20- 15.002, and 20-15.003, Florida Administrative Code, constitute an invalid exercise of delegated legislative authority.
Findings Of Fact Based on the stipulated facts, and the entire record in this proceeding, the following findings of fact are made: The Florida Citrus Commission was established in 1935 to organize and promote the growing and sale of various citrus products, fresh and processed, in the State of Florida. The purpose of the Citrus Commission is today reflected in Section 601.02, Florida Statutes. The powers of the Florida Citrus Commission ("the Commission") and the Department, are set forth in full in Section 601.10, Florida Statutes. The powers of the Department include the power to tax and raise other revenue to achieve the purposes of the Department. In particular, Section 601.10(1) and (2), Florida Statutes, state: The Department of Citrus shall have and shall exercise such general and specific powers as are delegated to it by this chapter and other statutes of the state, which powers shall include, but shall not be confined to, the following: To adopt and, from time to time, alter, rescind, modify, or amend all proper and necessary rules, regulations, and orders for the exercise of its powers and the performance of its duties under this chapter and other statutes of the state, which rules and regulations shall have the force and effect of law when not inconsistent therewith. To act as the general supervisory authority over the administration and enforcement of this chapter and to exercise such other powers and perform such other duties as may be imposed upon it by other laws of the state. The Department is authorized to set standards by Section 601.11, Florida Statutes, as follows: The Department of Citrus shall have full and plenary power to, and may, establish state grades and minimum maturity and quality standards not inconsistent with existing laws for citrus fruits and food products thereof containing 20 percent or more citrus or citrus juice, whether canned or concentrated, or otherwise processed, including standards for frozen concentrate for manufacturing purposes, and for containers therefor, and shall prescribe rules or regulations governing the marking, branding, labeling, tagging, or stamping of citrus fruit, or products thereof whether canned or concentrated, or otherwise processed, and upon containers therefor for the purpose of showing the name and address of the person marketing such citrus fruit or products thereof whether canned or concentrated or otherwise processed; the grade, quality, variety, type, or size of citrus fruit, the grade, quality, variety, type, and amount of the products thereof whether canned or concentrated or otherwise processed, and the quality, type, size, dimensions, and shape of containers therefor, and to regulate or prohibit the use of containers which have been previously used for the sale, transportation, or shipment of citrus fruit or the products thereof whether canned or concentrated or otherwise processed, or any other commodity; provided, however, that the use of secondhand containers for sale and delivery of citrus fruit for retail consumption within the state shall not be prohibited; provided, however, that no standard, regulation, rule, or order under this section which is repugnant to any requirement made mandatory under federal law or regulations shall apply to citrus fruit, or the products thereof, whether canned or concentrated or otherwise processed, or to containers therefor, which are being shipped from this state in interstate commerce. All citrus fruit and the products thereof whether canned or concentrated or otherwise processed sold, or offered for sale, or offered for shipment within or without the state shall be graded and marked as required by this section and the regulations, rules, and orders adopted and made under authority of this section, which regulations, rules, and orders shall, when not inconsistent with state or federal law, have the force and effect of law. The Department is authorized to conduct citrus research by Section 601.13, Florida Statutes. To help pay for these duties of the Department, the Legislature first enacted the "box tax" in 1949. The box tax is now codified as Section 601.15(3), Florida Statutes. Section 601.15(3)(a), Florida Statutes, provides in relevant part: There is hereby levied and imposed upon each standard-packed box of citrus fruit grown and placed into the primary channel of trade in this state an excise tax at annual rates for each citrus season as determined from the tables in this paragraph and based upon the previous season's actual statewide production as reported in the United States Department of Agriculture Citrus Crop Production Forecast as of June 1. Section 601.15(3)(a), Florida Statutes, goes on to set forth specific rates for fresh grapefruit, processed grapefruit, fresh oranges, processed oranges, and fresh or processed tangerines and citrus hybrids. Section 601.15(1), Florida Statutes, sets forth the Department's authority to administer the box tax, as follows: The administration of this section shall be vested in the Department of Citrus, which shall prescribe suitable and reasonable rules and regulations for the enforcement hereof, and the Department of Citrus shall administer the taxes levied and imposed hereby. All funds collected under this section and the interest accrued on such funds are consideration for a social contract between the state and the citrus growers of the state whereby the state must hold such funds in trust and inviolate and use them only for the purposes prescribed in this chapter. The Department of Citrus shall have power to cause its duly authorized agent or representative to enter upon the premises of any handler of citrus fruits and to examine or cause to be examined any books, papers, records, or memoranda bearing on the amount of taxes payable and to secure other information directly or indirectly concerned in the enforcement hereof. Any person who is required to pay the taxes levied and imposed and who by any practice or evasion makes it difficult to enforce the provisions hereof by inspection, or any person who, after demand by the Department of Citrus or any agent or representative designated by it for that purpose, refuses to allow full inspection of the premises or any part thereof or any books, records, documents, or other instruments in any manner relating to the liability of the taxpayer for the tax imposed or hinders or in anywise delays or prevents such inspection, is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. The box tax was challenged in 1936 and the Florida Supreme Court issued an opinion in 1937 upholding the validity of the box tax. C.V. Floyd Fruit Company v. Florida Citrus Commission, 128 Fla. 565, 175 So. 248 (1937). In 1970, the Legislature enacted the "equalization tax," codified as Section 601.155, Florida Statutes. The statute mirrored Section 601.15, Florida Statutes, but added certain processors who were mixing foreign citrus products with Florida products. The purpose of the equalization tax was to have all Florida processors of citrus products help pay for the costs of the Department, rather than have the burden fall entirely on the Florida growers subject to the box tax. Section 601.155, Florida Statutes, provides, in relevant part: The first person who exercises in this state the privilege of processing, reprocessing, blending, or mixing processed orange products or processed grapefruit products or the privilege of packaging or repackaging processed orange products or processed grapefruit products into retail or institutional size containers or, except as provided in subsection (9) or except if a tax is levied and collected on the exercise of one of the foregoing privileges, the first person having title to or possession of any processed orange product or any processed grapefruit product who exercises the privilege in this state of storing such product or removing any portion of such product from the original container in which it arrived in this state for purposes other than official inspection or direct consumption by the consumer and not for resale shall be assessed and shall pay an excise tax upon the exercise of such privilege at the rate described in subsection (2). Upon the exercise of any privilege described in subsection (1), the excise tax levied by this section shall be at the same rate per box of oranges or grapefruit utilized in the initial production of the processed citrus products so handled as that imposed, at the time of exercise of the taxable privilege, by s. 601.15 per box of oranges. In order to administer the tax, the Legislature provided the following relevant provisions in Section 601.155, Florida Statutes: Every person liable for the excise tax imposed by this section shall keep a complete and accurate record of the receipt, storage, handling, exercise of any taxable privilege under this section, and shipment of all products subject to the tax imposed by this section. Such record shall be preserved for a period of 1 year and shall be offered for inspection upon oral or written request by the Department of Citrus or its duly authorized agent. Every person liable for the excise tax imposed by this section shall, at such times and in such manner as the Department of Citrus may by rule require, file with the Department of Citrus a return, certified as true and correct, on forms to be prescribed and furnished by the Department of Citrus, stating, in addition to other information reasonably required by the Department of Citrus, the number of units of processed orange or grapefruit products subject to this section upon which any taxable privilege under this section was exercised during the period of time covered by the return. Full payment of excise taxes due for the period reported shall accompany each return. All taxes levied and imposed by this section shall be due and payable within 61 days after the first of the taxable privileges is exercised in this state. Periodic payment of the excise taxes imposed by this section by the person first exercising the taxable privileges and liable for such payment shall be permitted only in accordance with Department of Citrus rules, and the payment thereof shall be guaranteed by the posting of an appropriate certificate of deposit, approved surety bond, or cash deposit in an amount and manner as prescribed by the Department of Citrus. * * * (11) This section shall be liberally construed to effectuate the purposes set forth and as additional and supplemental powers vested in the Department of Citrus under the police power of this state. In March 2000, certain citrus businesses challenged Section 601.155(5), Florida Statutes, as being unconstitutional. At the time of the suit, Section 601.155(5), Florida Statutes, read as follows: All products subject to the taxable privileges under this section, which products are produced in whole or in part from citrus fruit grown within the United States, are exempt from the tax imposed by this section to the extent that the products are derived from oranges or grapefruit grown within the United States. In the case of products made in part from citrus fruit grown within the United States, it shall be the burden of the persons liable for the excise tax to show the Department of Citrus, through competent evidence, proof of that part which is not subject to a taxable privilege. The citrus businesses claimed the exemption in Section 601.155(5) rendered the tax unconstitutionally discriminatory, in that processors who imported juice from foreign countries to be blended with Florida juice were subject to the equalization tax, whereas processors who imported juice from places such as California, Arizona and Texas enjoyed an exemption from the tax. The case, Tampa Juice Service, Inc., et al. v. Department of Citrus, Case No. GCG-00-3718 (Consolidated), was brought in the Tenth Judicial Circuit Court, in and for Polk County. Judge Dennis P. Maloney of that court continues to preside over that case. In a partial final declaratory judgment effective March 15, 2002, Judge Maloney found Section 601.155, Florida Statutes, unconstitutional because it violated the Commerce Clause of the United States Constitution due to its discriminatory effect in favor of non-Florida United States juice. In an order dated April 15, 2002, Judge Maloney severed the exemption in Section 601.155(5), Florida Statutes, from the remainder of the statute. The court's decision necessitated the formulation of a remedy for the injured plaintiffs. While the parties were briefing the issue before the court, the Florida Legislature met and passed Chapter 2002-26, Laws of Florida, which amended Section 601.155, Florida Statutes, to read as follows: Products made in whole or in part from citrus fruit on which an equivalent tax is levied pursuant to s. 601.15 are exempt from the tax imposed by this section. In the case of products made in part from citrus fruit exempt from the tax imposed by this section, it shall be the burden of the persons liable for the excise tax to show the Department of Citrus, through competent evidence, proof of that part which is not subject to a taxable privilege. Chapter 2002-26, Laws of Florida, was given an effective date of July 1, 2002. By order dated August 8, 2002, Judge Maloney set forth his decision as to the remedy for the plaintiffs injured by the discriminatory effect of Section 601.155(5), Florida Statutes. Judge Maloney expressly relied on the rationale set forth in Division of Alcoholic Beverages and Tobacco v. McKesson Corporation, 574 So. 2d 114 (Fla. 1991)("McKesson II"). In its initial McKesson decision, Division of Alcoholic Beverages and Tobacco v. McKesson Corporation, 524 So. 2d 1000 (Fla. 1988), the Florida Supreme Court affirmed a summary judgment ruling that Florida's alcoholic beverage tax scheme, which gave tax preferences and exemptions to certain alcoholic beverages made from Florida crops, unconstitutionally discriminated against interstate commerce. The Florida Supreme Court also affirmed that portion of the summary judgment giving the ruling prospective effect, thus denying the plaintiff a refund of taxes paid pursuant to the unconstitutional scheme. The decision was appealed to the United States Supreme Court. In McKesson Corporation v. Division of Alcoholic Beverages and Tobacco, 496 U.S. 18 (1990), the United States Supreme Court reversed the Florida Supreme Court's decision as to the prospective effect of its decision. The United States Supreme Court held that: The question before us is whether prospective relief, by itself, exhausts the requirements of federal law. The answer is no: If a State places a taxpayer under duress promptly to pay a tax when due and relegates him to a postpayment refund action in which he can challenge the tax's legality, the Due Process Clause of the Fourteenth Amendment obligates the State to provide meaningful backward-looking relief to rectify any unconstitutional deprivation. 496 U.S. at 31 (footnotes omitted). The United States Supreme Court set forth the following options by which the state could meet its obligation to provide "meaningful backward-looking relief:" [T]he State may cure the invalidity of the Liquor Tax by refunding to petitioner the difference between the tax it paid and the tax it would have been assessed were it extended the same rate reductions that its competitors actually received. . . . Alternatively, to the extent consistent with other constitutional restrictions, the State may assess and collect back taxes from petitioner's competitors who benefited from the rate reductions during the contested tax period, calibrating the retroactive assessment to create in hindsight a nondiscriminatory scheme. . . . Finally, a combination of a partial refund to petitioner and a partial retroactive assessment of tax increases on favored competitors, so long as the resultant tax actually assessed during the contested tax period reflects a scheme that does not discriminate against interstate commerce, would render petitioner's resultant deprivation lawful and therefore satisfy the Due Process Clause's requirement of a fully adequate postdeprivation procedure. 496 U.S. at 40-41 (citations and footnotes omitted). The United States Supreme Court expressly provided that the state has the option of choosing the form of relief it will grant. In keeping with the United States Supreme Court opinion, the Florida Supreme Court granted the Division of Alcoholic Beverages and Tobacco (the "Division") leave to advise the Court as to the form of relief the state wished to provide. The Division proposed to retroactively assess and collect taxes from those of McKesson's competitors who had benefited from the discriminatory tax scheme. McKesson contended that a refund of the taxes it had paid was the only clear and certain remedy, because retroactive taxation of its competitors would violate their due process rights. McKesson II, 574 So. 2d at 115. The Florida Supreme Court remanded the case to the trial court for further proceedings on McKesson's refund claim, with the following instructions: While McKesson may not necessarily be entitled to a refund, it is entitled to a "clear and certain remedy," as outlined in the Supreme Court's opinion. Because nonparties, such as amici, will be directly affected by the retroactive tax scheme proposed by the state, all affected by the proposed emergency rule must be given notice and an opportunity to intervene in this action. Therefore, on remand, the trial court not only must determine whether the state's proposal meets "the minimum federal requirements" outlined in the Supreme Court's opinion, it also must determine whether the proposal comports with federal and state protections afforded those against whom the proposed tax will be assessed. We emphasize that the state has the option of choosing the manner in which it will reformulate the alcoholic beverage tax during the contested period so that the resultant tax actually assessed during that period reflects a scheme which does not discriminate against interstate commerce. Therefore, if the trial court should rule that the state's proposal to retroactively assess and collect taxes from McKesson's competitors does not meet constitutional muster and such ruling is upheld on appeal, the state may offer an alternative remedy for the trial court's review. However, any such proposal likewise must satisfy the standards set forth by the Supreme Court as well as be consistent with other constitutional restrictions. 574 So. 2d at 116. In the instant case, Judge Maloney assessed the options prescribed by the series of McKesson cases and concluded that the only fair remedy was to assess and collect back assessments from those who benefited from the unconstitutional equalization tax exemption. His August 8, 2002 order directed the Department to "take appropriate steps, consistent with existing law, to assess and collect the Equalization tax from those entities which [benefited] from the unconstitutional exemption." On September 18, 2002, the Department promulgated the Emergency Rules at issue in DOAH Case No. 02-3648RE. The Emergency Rules were filed with the Department of State on September 24, 2002, and took effect on that date. They were published in the October 4, 2002 issue of the Florida Administrative Weekly (vol. 28, no. 40, pp. 4271-4272). The full text of the Emergency Rules is: EQUALIZATION TAX ON NON-FLORIDA UNITED STATES JUICE 20ER02-1 Intent. The Court in Tampa Juice Service, et al v. Florida Department of Citrus in Consolidated Case Number GCG-003718 (Circuit Court in and for Polk County, Florida) severed the exemption contained in Section 601.155(5), Florida Statutes, that provided an exemption for persons who exercised one of the enumerated Equalization Tax privileges on non-Florida, United States juice. The Court had previously determined that the stricken provisions operated in a manner that violated the Commerce Clause of the United States Constitution. On August 8, 2002, the Court ordered that the Florida Department of Citrus "take appropriate steps, consistent with existing law, to assess and collect the Equalization tax from those entities which [benefited] from the unconstitutional exemption." It is the Florida Department of Citrus' intent by promulgating the following remedial Rule 20ER02-01 and Chapter 20-15, F.A.C., to implement a non-discriminatory tax scheme, which does not impose a significant tax burden that is so harsh and oppressive as to transgress constitutional limitations. These rules shall be applicable to those previously favored persons who received favorable tax treatment under the statutory sections cited above. Specific Authority 601.02, 601.10, 601.15, 601.155 FS. Law Implemented 601.02, 601.10, 601.15, 601.155 FS. History-- New 9-24-02. 20ER02-2 Definitions. "Previously favored persons" shall be defined as any person who exercised an enumerated Equalization Tax privilege as defined by Section 601.155, Florida Statutes, but who was exempt from payment of the Equalization Tax due to the exemption for non-Florida, United States juice set forth in the statutory provision, which was ultimately determined to be unconstitutional and severed from Section 601.155(5), Florida Statutes. The "tax period" during which the severed provisions of Section 601.155(5), Florida Statutes, were in effect shall be defined as commencing on October 6, 1997, and ending on March 14, 2002. "Tax liability" shall be defined as the total amount of taxes due to the Florida Department of Citrus during the "tax period," at the following rates per box for each respective fiscal year: Fiscal Year Processed Rate Orange Grapefruit 1997-1998 .175 .30 1998-1999 .17 .30 1999-2000 .18 .325 2000-2001 .175 .30 2001-2002 .165 .18 Specific Authority 601.02, 601.10, 601.15, 601.155 FS. Law Implemented 601.02, 601.10, 601.15, 601.155 FS. History-- New 9-24-02. 20ER02-3 Collection. The Florida Department of Citrus shall calculate the tax liability for each person or entity that exercised an enumerated Equalization Tax privilege outlined in section 601.155, Florida Statutes, upon non-Florida, United States juice based upon inspection records maintained by Florida Department of Agriculture and Consumer Services and the United States Department of Agriculture. Additionally, the Florida Department of Citrus will provide notice of the calculation to the previously favored persons by certified mail. The notice of the calculation shall contain a statement including the following categories: (a) Tax liability; (b) Gallons; Brix; Type of product; (e) Total solids; (f) Conversion rate; (g) Total boxes; (h) Delineation of non-Florida, United States juice. (2)(a) Contained within the notice will be the various legal options available to those who previously enjoyed the exemption, set forth in proposed Rule 20- 15.003(2), F.A.C. (b) Persons who previously enjoyed the exemption may petition to intervene in the case of Tampa Juice Service, Inc., et al, Consolidated Case No. GCG-003718, presently pending before the Circuit Court of the Tenth Judicial Circuit in and for Polk County. A hearing to consider arguments made by any intervenor, the Plaintiffs and the Florida Department of Citrus is currently scheduled to be heard by the Honorable Dennis Maloney on November 12, 2002, in Bartow, Florida. (3) The Florida Department of Citrus will not oppose the timely intervention of persons who previously enjoyed the subject exemption that wish to present a claim to the Court in the Tampa Juice Service, Inc., et al v. Florida Department of Citrus. However, the Florida Department of Citrus does not waive any argument regarding the validity of the calculation of the tax liability or that imposition of this tax is constitutional. Specific Authority 601.02, 601.10, 601.15, 601.155 FS. Law Implemented 601.02, 601.10, 601.15, 601.155 FS. History-- New 9-24-02. The Department's "Specific Reasons for Finding an Immediate Danger to the Public Health, Safety or Welfare" were set forth as follows: On March 18, 2002, the Court in the Tenth Judicial Circuit, State of Florida, in and for Polk County, entered a Partial Final Declaratory Judgment in the case of Tampa Juice Service, Inc., et al v. Florida Department of Citrus, Consolidated Case Number GCG-003718. In this order the Court ruled that the exemption in Section 601.155, F.S., for non-Florida, United States juice was unconstitutional. On or about April 15, 2002, the Court severed the exemption for non-Florida, United States juice from section 601.155(5), F.S. On August 8, 2002, the Court held that the Florida Department of Citrus was required to cure the invalidity of the equalization taxing scheme. To cure this invalidity, the Florida Department of Citrus promulgates Rule 20ER02-1, F.A.C., which will serve to implement the Court's order for a nondiscriminatory tax scheme and provide due process protections for the previously favored taxpayers. These rules are being promulgated on an emergency basis to meet time constraints associated with litigation and to establish guidelines which protect the public's and state's interest for the orderly and efficient collection and payment of the tax liability. Without these guidelines, the welfare of the citizens and the state would be adversely affected because of the immediate and widespread impact of the failure of previously favored persons to properly remit the tax. The Department's "Reason for Concluding that the Procedure is Fair Under the Circumstances" was set forth as follows: Promulgation of these guidelines using the emergency rule procedures is the only available mechanism which adequately protects the public interests under the circumstances which require collection and payment of the tax liability. This procedure is fair to the public and to the previously favored persons. It permits promulgation of the necessary guidelines within a time frame which allows the industry to be adequately informed of their duties, responsibilities and rights with respect to the tax liability. In the November 15, 2002 issue of the Florida Administrative Weekly (vol. 28, no. 46, pp. 4996-4998), the Department published the Proposed Rules at issue in DOAH Case No. 02-4607RP. The text of Proposed Rule 20-15.001, Florida Administrative Code, is identical to that of Emergency Rule 20ER02-1, set forth above. The text of Proposed Rule 20-15.002, Florida Administrative Code, is identical to that of Emergency Rule 20ER02-2, set forth above. The text of Proposed Rule 20- 15.003(1)&(3), Florida Administrative Code, is identical to that of Emergency Rule 20ER02-3(1)&(3), set forth above. The text of Proposed Rule 15.003(2), Florida Administrative Code, varies from the text of Emergency Rule 20ER02-3(2), and reads as follows: 20-15.003 Collection. Subsequent to adoption of this rule, the Florida Department of Citrus will provide to the previously favored persons by certified mail a Notice of Tax Liability which shall contain a demand for payment consistent with the above-referenced itemized statement. The Department will deem late payment of Equalization Taxes owed by previously favored persons to constitute good cause, and shall waive the 5 percent penalty authorized by Section 601.155(10), F.S., as compliance with either of the following is established by Department [sic]: Lump sum payment of the tax liability remitted with the filing of Department of Citrus Form 4R (incorporated by reference in Rule 20-100.004, F.A.C.) for the relevant years and then-applicable tax rate(s) per subsection 20-15.002(3), F.A.C., within 61 days of receiving Notice of Tax Liability; or Equal installment payments remitted with the filing of Department of Citrus Form 4R (incorporated by reference in Rule 20-100.004, F.A.C.) for the relevant years and then-applicable tax rate(s) per subsection subsection [sic] 20-15.002(3), F.A.C., over a 60-month period, the first payment being due within 61 days of receiving Notice of Tax Liability pursuant to subsection 20-15.003(2), F.A.C.; or The Good Cause provisions of 601.155(10), F.S., shall not apply to persons who do not comply with paragraph 20- 15.003(2)(a), F.A.C., or paragraph 20- 15.003(2)(b), F.A.C. Failure to pay the taxes or penalties due under 601.155, F.S. and Chapter 20-15, F.A.C., shall constitute grounds for revocation or suspension of a previously favored person's citrus fruit dealer's license pursuant to 601.56(4), F.S., 601.64(6), F.S., 601.64(7), F.S., and/or 601.67(1), F.S. Peace River is a Florida corporation and licensed citrus fruit dealer regulated by Chapter 601, Florida Statutes. As such, Peace River is subject to the rules of the Department. Peace River buys, sells, and manufactures bulk citrus juices. By correspondence dated October 2, 2002, Peace River was notified by the Department that Peace River would be liable for payment of $86,242.41 in Equalization taxes for the tax period of October 6, 1997 through March 14, 2002 (the "tax period"), pursuant to the terms of the Emergency Rules. Fresh Juice is a Florida corporation and licensed citrus fruit dealer regulated by Chapter 601, Florida Statutes. As such, Fresh Juice is subject to the rules of the Department. Fresh Juice buys, sells, and manufactures citrus juices. By correspondence dated October 2, 2002, Fresh Juice was notified by the Department that Fresh Juice would be liable for payment of $45,052.19 in Equalization taxes for the tax period, pursuant to the terms of the Emergency Rules. Sun Orchard is a Florida corporation and licensed citrus fruit dealer regulated by Chapter 601, Florida Statutes. As such, Sun Orchard is subject to the rules of the Department. Sun Orchard buys, sells, and manufactures citrus juices. By correspondence dated October 2, 2002, Sun Orchard was notified by the Department that Sun Orchard would be liable for payment of $45,052.19 in Equalization taxes for the tax period, pursuant to the terms of the Emergency Rules. During the tax period, Peace River, Fresh Juice, and Sun Orchard imported, stored and blended non-Florida, United States citrus juices. Neither Peace River, Fresh Juice, nor Sun Orchard is a party to the lawsuit styled Tampa Juice Service, Inc., et al. v. Department of Citrus, Case No. GCG-00-3718 (Consolidated). Peace River, Fresh Juice, and Sun Orchard contend that they relied on the tax exemption in making business decisions and had no notice that their activities regarding non-Florida, United States juice would be taxable upon the court's striking of the exemption in Section 601.155(5), Florida Statutes. Accordingly, Peace River, Fresh Juice, and Sun Orchard contend that, during the tax period, they had no opportunity to conform their conduct to avoid the tax or position themselves to claim a refund allowed by Section 601.155, Florida Statutes. Peace River, Fresh Juice, and Sun Orchard contend that they have not been obligated by Chapter 601, Florida Statutes, to keep specific records on their use of non-Florida United States citrus juices for the tax period, but admit they keep business records required by law, which may include some business records related to non-Florida United States juice during the tax period. Peace River, Fresh Juice, and Sun Orchard shipped products made with non-Florida, United States juice during the tax period without payment of the Equalization Tax.
