Findings Of Fact On January 31, 1984, the subject vessel, a 1969 sixty-five foot Hargrave Halmatic motor yacht, was purchased by Nelson Gross as President and principal of the corporation, Binghamton Too, Inc., for $457,500 in Houston Texas. It was financed through a Connecticut bank. The closing was held in Mr. Gross' New Jersey office. No sales or use tax has been paid on the yacht in Florida or in any other state. Mr. Gross' initial intent was to operate his new purchase as a commercial charter boat in conjunction with the "Binghamton," a ferryboat permanently moored and operating in Edgewater, New Jersey, as a floating restaurant. To get the new motor yacht there, Mr. Gross directed that it be brought to New Jersey around the Florida coast under its own power. The motor yacht reached Florida on February 17, 1984, but en route from Texas an unexpected vibration had arisen which required emergency repairs. These repairs were commissioned at Bradford Marine, Ft. Lauderdale, Florida, where the motor yacht remained, except for sea trials in connection with the vibration problem, until the first week in April, 1984. A cracked strut was diagnosed as the cause of the vibration problem. Repair costs of this emergency problem totalled $5,975. The balance of charges incurred at Bradford Marine, Ft. Lauderdale, was $21,729, including dockage. Many more of the repairs catalogued by Respondent's Exhibit 5, the Bradford Marine records for this period, were clearly voluntary, discretionary, and cosmetic in nature. The majority were of a non-emergency nature. The vessel, by then relettered "Binghamton Too," left Florida waters approximately April 20, 1984. "Binghamton Too" next spent approximately three weeks at Thunderbolt Marine Industries in Georgia at an approximate cost of $12,000. There, a strap was fabricated to hold the strut and the yacht proceeded on to New Jersey. The "Binghamton Too" began its charter business as part of the "Binghamton" operation in Edgewater, New Jersey on May 5, 1984. Seventy-five to eighty charters were accomplished between May, 1984 and October, 1984 under New Jersey state and local chartering, transit liquor, and environmental licenses and under U.S. Corps of Engineers permits. "Binghamton Too" returned to Florida waters sometime on or before October 25, 1984, when it was sighted at the Indian River Causeway Bridge. On October 26, 1984, it was sighted at Flagler Bridge in West Palm Beach. Thereafter, it went on to the Lantana Boat Works Marina, Lantana, Florida, for repairs. Lantana is the location of the yacht's original builder, whose equipment and expertise were preferable to that of other boatyards for certain strut repairs due to the peculiar nature of this type of yacht. After those repairs, the yacht was anchored in Palm Beach from January 1985 to April 1985. Although Mr. Gross testified that the strut repairs of necessity had to be done in the Lantana boatyard, his view is not necessarily conclusive of this issue because he admitted "Binghamton Too" was the first yacht he had ever purchased, because he was vague about equating desirability and necessity without any supporting direct expert testimony, and because of the facts found infra. The Lantana repair records from October 29 to December 31, 1984 show $42,521.82 in repairs, of which only $2,500 pertain to fabrication of a strut. Again, the majority of repairs was to refurbish and paint the vessel. Mr. Gross spent approximately October 1984 to April 1985, October 1985 to April 1986, and October 1986 to April 1987 in his father's home in West Palm Beach, Florida. By his own testimony, he confirmed that he established the "technical" office for his "Binghamton Too" business there. He applied, in early December 1984, for a Florida sales tax registration to operate a charter business, representing Palm Beach as his place of business. The account was established January 1, 1985 with the account number of 60-22-080051-61. The captain and mate of the "Binghamton Too" also wintered in Florida each of these years. On December 6, 1984, Mr. Gross wrote the State of New Jersey's Division of Taxation that the yacht's "principal location and headquarters are in West Palm Beach, Florida where it maintains an office and full-time employees," thus successfully arguing that the "Binghamton Too" should be exempt from New Jersey's registration requirements for any vessel residing in that state in excess of 180 days. This correspondence was in connection with a tax problem of the mother ship "Binghamton," still moored in New Jersey. Mr. Gross further represented that Florida was "Binghamton Too's" primary location with trips to the Bahamas." For most of the period from late December, 1984 to early April, 1985, the yacht was in Palm Harbor Marina, West Palm Beach, Florida, the first time not in repairs, and clearly could have returned to New Jersey under its own power had Mr. Gross chosen to do so. From January 24 to March 26, 1985, the boat was in operation, as sighted at the Pompano Beach and Fort Lauderdale bridges. From April 1985 until October of 1985, the yacht was operated as part of Petitioner's commercial charter operation in New Jersey, which included over 100 charters during this time period. Nonetheless, on June 10, 1985, Mr. Gross purchased a boat slip at Ocean Reef Club in Key Largo, Florida. This slip was later sold. Upon the foregoing Findings of Fact 6-12, which clearly establish a pattern of wintering the yacht in Florida waters, it is inferred that, despite Mr. Gross' testimony that it was "necessary" to have "Binghamton Too's" strut repaired in late 1984 by the original Florida manufacturer of the yacht, its presence in Florida from October 1984 until April, 1985 was primarily and substantially due to the preference of Mr. Gross, Petitioner's President, and not due to necessity or emergency. In October of 1985, the yacht returned to Florida where it remained until April of 1986. During this time, the boat underwent further repairs, including the complete repainting of the hull, the need for which Mr. Gross attributed to the old paint being cracked and shaken off by the vibration of the yacht. From April 1986 until October of 1986, the yacht was operated as part of Petitioner's commercial charter operation in New Jersey, which included over 100 charters during this time period. The yacht returned to Florida in October, 1986, and again remained in Florida until early April, 1987, when it left for New Jersey. In late October 1987, the yacht returned to Florida where it was traded in as part of the consideration for a larger yacht in November of 1987. The closing date was December 30, 1987. The cash equivalent received by Petitioner as credit on the trade-in was $100,000. In all, Petitioner asserts that over $200,000 was spent by the corporation on the "Binghamton Too" before it was traded. Shortly after buying the "Binghamton Too", Petitioner had begun trying to sell it for the highest price obtainable. These sales efforts included large ads in national yachting publications and listings with active yacht brokers. The highest outright offer received by Petitioner was $75,000. However, this was Mr. Gross' first sales effort of this kind, and his opinion testimony that the "Binghamton Too" was not bought from the Petitioner outright and at a good price because of latent defects and cost of repair is neither credible nor persuasive since his opinion does not possess the reliability of an expert in assessing whether it was the condition of the yacht, its unusual "Halmatic" type, or some other factor which made the "Binghamton Too" undesirable to potential purchasers. The Florida Department of Revenue issued a Notice of Delinquent Tax January 30, 1987, of five-percent use tax upon the purchase price plus 25 percent penalty. Interest was figured at 12 percent per annum. Petitioner timely protested. The agency conceded that the purchase price on the original notice was mistakenly listed at $475,000, that the assessment appropriately should have been on $457,500 (see Finding of Fact No. 1) and that the State presently claims only the tax amount of 5% of Petitioner's initial $457,500 purchase price at $22,875, the 25 percent penalty at $5,719, and interest on the tax from February 18, 1984, to June 18, 1989 at $14,650. (Interest accrues at $7.52 daily.) The total assessment through June 18, 1989 is $43,234.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Revenue enter a Final Order affirming the assessment of $22,875, with 25% penalty and interest at $7.52 per day from February 18, 1984 until paid. DONE and RECOMMENDED this 11th day of August, 1989, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 11th day of August, 1989. APPENDIX TO RECOMMENDED ORDER Upon consideration of Section 120.59(2) Florida Statutes the following rulings are made upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1, 2,3, 5, 10, 11, 13, 14, 15, 17, 18, 19, 21, 22: Accepted except to the degree not proven. 4: Rejected as stated because not supported by the greater weight of the evidence as a whole. 6, 12: Rejected in part as not proven, in part as subordinate and unnecessary, and in part as to the conclusion-if law as "latent." 7, 8, 9: Accepted except as subordinate and unnecessary to the facts as found. 16: Accepted that Mr. Gross testified to this amount, however, the evidence does not support the amount precisely nor that it all went to "repairs." 20: Accepted as modified to better express the record as a whole. Respondent's PFOF: 1: Accepted, but as a Conclusion of Law. 2, 3, 4, 9, 10, 12, 13, 14, 15, 16, 17, 19, 20, 21, 22, 23: Accepted. 5: Accepted in substance; what is not adopted is either mere recitation/characterization of testimony, is cumulative, or is subordinate to the facts as found. 6: Accepted but subordinate and unnecessary to the facts as found. 7: Sentence 1 is accepted. The remainder is rejected as mere legal argument or subordinate to the facts as found. 8, 11: Accepted as modified to conform to the record as a whole. Mr. Gross testified to a May 5, 1984 date for No. 8. 18: Except for mere legal argument, accepted. 24: Accepted upon the terms set forth in the Recommended Order. 25: Except as subordinate and unnecessary, accepted. COPIES FURNISHED: Gene D. Brown, Esquire 3836 Killearn Court Tallahassee, Florida 32308 Linda G. Miklowitz, Esquire Department of Legal Affairs Tax Section, The Capitol Tallahassee, Florida 32399-1050 William D. Moore, General Counsel Department of Revenue 203 Carlton Building Tallahassee, Florida 32399-0100 Katie D. Tucker Executive Director Department of Revenue 102 Carlton Building Tallahassee, Florida 32399-0100
The Issue Whether the Petitioner owes sale and/or use tax for the purchase/lease of magnetic tapes containing mailing lists used by the Petitioner in its mail order business, as set forth in the Notice of Decision dated December 10, 2003, and, if so, the amount owed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, including the Joint Pre-Hearing Stipulation, the following findings of fact are made: The Department is the agency authorized to administer the tax laws of the State of Florida. See § 213.05, Florida Statutes (2004). At the times material to this proceeding, Spectramin was a Florida "S" corporation whose home office and principal place of business was located at 5401 Northwest 102 Avenue, Suite 119, Sunrise, Florida. Spectramin was a Florida- registered sales tax dealer. On October 19, 2001, the Department issued to Spectramin a Notification of Intent to Audit Books and Records for audit number A0127016590, which was a sales and use tax audit covering the Audit Period. On January 15, 2002, the Department and Spectramin signed an audit agreement that delineated the procedures and sampling method to be used by the Department for the audit. Because Spectramin's books and records were voluminous, the Department and Spectramin agreed to employ certain specified sampling procedures. For the audit, the Department examined Spectramin's purchase invoices, general ledgers, and income statements for the 2000 calendar year. At the times material to this proceeding, Spectramin was a mail-order company that sold nutritional supplements throughout the United States. It engaged in direct marketing of its products and employed two methods of direct marketing: Self-mailers were sent to prospective customers, and catalogs were sent to persons who had purchased its products, as a means of educating these buyers and converting them into repeat customers.1 In order to send self-mailers to prospective customers, Spectramin leased mailing lists consisting of names and addresses, and, in some instances, bar codes, compiled by various vendors who sold mailing lists. The contents of the mailing lists were based on demographic criteria specified by Spectramin. Under the terms of the lease, Spectramin was allowed to use the mailing list for only one mailing. Pertinent to this proceeding, Spectramin received some of the mailing lists in the form of data digitally encoded on magnetic tapes. The cost of leasing a mailing list was based on the number of names on the list, and the invoice for a list included a separately-stated, standard charge of $25.00 to cover the cost of the magnetic tape containing the data. The magnetic tapes themselves had no value to Spectramin; the only value of the tapes to Spectramin lay in the data encoded on the tapes, and the greatest part of the cost of the one-time lease was the cost of the data encoded on the magnetic tapes; for example, Spectramin paid $75.00 per 1,000 names for one of the mailing lists it leased, plus the $25.00 charge for the magnetic tape. Spectramin did not pay sales tax in Florida on the cost of the data encoded on the magnetic tapes at the time it leased the mailing lists. Spectramin did not have the computer equipment necessary to read the data on magnetic tapes, so it contracted with third-party letter shops and printers to process the magnetic tapes. The letter shops with which Spectramin has done business since 1991 are all located outside the state of Florida. Once a letter shop received magnetic tapes from Spectramin, the data on the tapes were downloaded to a computer, and cleaned, and sorted into usable names and addresses; the letter shop then sent the cleaned and sorted data to a print shop, which printed the names and addresses onto self-mailers provided by Spectramin. The letter shop sorted the self-mailers by zip code and mailed them. All of these operations took place outside Florida. At one time, Spectramin's practice was to have the mailing-list vendors ship the magnetic tapes encoded with the data directly to a letter shop specified by Spectramin. The letter shop held the Spectramin magnetic tapes until it had accumulated several tapes, and then it would process the data from the tapes, have the names and addresses printed on the self-mailers, and mail the self-mailers. Spectramin found that the letter shops with which it did business sometimes lost track of the tapes received for Spectramin's mailings, and it cost Spectramin additional time and money to track down the tapes or to purchase mailing lists. Because of the additional time and money Spectramin spent to track down the lists, it stopped having the magnetic tapes sent directly to the letter shop. At the times material to this proceeding, the magnetic tapes containing the digitally-encoded mailing lists were shipped directly to Spectramin by the mailing-list vendors, and Spectramin took delivery of the tapes at its principal place of business in Florida. The vendors sent the mailing lists to Spectramin's Florida office by overnight delivery through either Federal Express or United Parcel Service. It was Spectramin's usual business practice for an employee to take delivery of the magnetic tapes containing the mailing lists and to place them on a shelf in the front of the office. The boxes containing the magnetic tapes were not opened. When Spectramin had accumulated several boxes of magnetic tapes, an employee put the boxes into a larger box and sent the tapes by overnight delivery to one of the out-of-state letter shops with which Spectramin did business. Spectramin did not keep the tapes in its Florida office more than one or two days because the mailing lists it had leased lost their value with time.2 The only value of the magnetic tapes was in the names and addressed encoded on the tapes, and the only use to which Spectramin put the data was to cause the names and addresses it had leased to be printed on self-mailers and mailed to the prospective customers. Because the letter shops that printed the names and addresses and mailed the self-mailers were located outside of Florida, Spectramin did not "use" the data or the magnetic tapes in Florida. The only contact the magnetic tapes had with Florida was during the short period of time the tapes sat on the shelf at Spectramin's office before being shipped out of the state for processing. Spectramin did not pay use tax in Florida on the cost of the data encoded on the magnetic tapes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue issue a final order withdrawing the sales and use tax assessment against Spectramin, Inc., for the audit period extending from September 1, 1996, through August 31, 2001. DONE AND ENTERED this 24th day of January, 2005, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO 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 24th day of January, 2005.
The Issue Whether petitioner taxpayer is liable for delinquent sales tax, penalties, and interest under Chapter 212, Florida Stat utes, as alleged by respondent Department in its notice of proposed assessment.
Findings Of Fact The Taxpayer Taxpayer is a family-operated Florida corporation which has engaged in retail sales at the Tampa Port Authority since 1975 or 1976; it is a licensed dealer registered with the Department. (Testimony of Roberts, Marylis.) Taxpayer's Sales During Audit Period From June 1, 1977, through July 31, 1980 (the audit period covered by the Department's proposed assessment), Taxpayer had gross sales in the approximate amount of $691,013.46. (Testimony of Roberts; Exhibit 2.) During that period, Taxpayer filed the required DR-15 monthly sales tax reports and paid taxes on all retail sales transactions which took place on the premises of its store located at 804 Robinson Street, (Tampa Port Authority) Tampa, Florida. (Testimony of Roberts.) During the same audit period -- in addition to sales on its store premises -- Taxpayer sold goods to merchant seamen on board foreign vessels temporarily docked at the Port of Tampa. These vessels operated in foreign commerce, entering the port from and returning to international waters outside the territorial limits of the United States. Taxpayer did not report these sales on its monthly sales tax reports; neither did it charge or collect sales tax from the on-board purchasers. (Testimony of Marylis.) Taxpayer failed to charge or collect sales tax in connection with its on-board sales because it relied on what it had been told by Department representatives. Prior to forming Taxpayer's corporation Thomas Marylis went to the local Department office to obtain a dealer's certificate. While there, he asked Manuel Alvarez, Jr., then the Department's regional audit supervisor, whether he was required to collect sales tax on ship-board sales. Alvarez replied that he didn't have to collect sales taxes on sales made to seamen when he delivered the goods to the ship. 1/ (Testimony of Marylis.) The on-board sales transactions took place in the following manner: Taxpayer (through its owner, Thomas Marylis) would board the foreign vessel and accept orders from the captain, chief mate, or chief steward. (Earlier, one of these persons would have taken orders from the rest of the crew.) If individual crewmen tried to place orders, Marylis would refer them to the captain, chief mate, or chief steward. After receiving orders from one of these three persons, Marylis would return to Taxpayer's store, fill the order, and transport the goods back to the vessel. Whoever placed the order would then examine the goods and give Marylis the money /2 collected from the crew. (Testimony of Roberts, Marylis.) The goods sold in this manner were ordinarily for the personal use of individual crew members; typical items were: shoes, underwear, working clothes, small radios, watches, suitcases, soap, paper towels, and other personal care products. (Testimony of Marylis.) Department Audit of Taxpayer In 1980, the Department audited Taxpayer's corporate books to determine if sales tax had been properly collected and paid. Taxpayer could produce no dock or warehouse receipts, bills of lading, resale certificates from other licensed dealers, or affidavits verifying that its on-board sales were made to out-of-state purchasers for transportation outside of Florida. (Testimony of Roberts, Marylis.) Due to Taxpayer's failure to supply documentation demonstrating that its ship-board sales from June 1, 1977, to July 31, 1980, were exempt from sales tax imposed by Chapter 212, Florida Statutes, the Department issued a proposed assessment on September 23, 1980. Through that assessment, the Department seeks to collect $21,201.01 in delinquent sales tax, $5,131.39 in penalties, and $3,892.18 in interest (in addition to interest at 12 percent per annum, or $6.97 per day, accruing until date of payment). (Exhibit 5.) Informal Conference with Department; Alvarez's Representations to Taxpayer In October 1980 -- after the audit -- Taxpayer (through Marylis) informally met with Manuel Alvarez, the Department's regional audit supervisor, to discuss the tax status of the shipboard sales. Specifically, they discussed the Department auditor's inability to confirm that Taxpayer delivered the items to the ships, as opposed to the buyers picking up the goods at the store. Alvarez told him: [I]f the buyers would come and just pick them up and take them. And I [Alvarez] think I told him that, if that was the case, it was taxable. But, if they just placed their orders there -- like we have had other ship supplies -- and they them- selves, or one of their employees, would take the items aboard ships, that would be an exempt sale. I did make that state ment. If we had any type of confirmation to that effect, when it comes to that. (Tr. 61.) 3/ (Testimony of Alvarez.) Alvarez then told Marylis to obtain documentation or verification that the sales were made on foreign vessels, i.e., proof that Taxpayer delivered the goods to the vessels. He assured Marylis that if he could bring such verification back, such sales "would come off the audit." (Tr. 62.)(Testimony of Alvarez.) Alvarez was an experienced Department employee: he retired in 1980, after 30 years of service. It was Alvarez's standard practice -- when dealing with sales tax exemption questions -- to reiterate the importance of documentation. He would always give the taxpayer an opportunity -- 30 days or more -- to obtain documentation that a sale was exempt from taxation. (Testimony of Alvarez.) Taxpayer's Verification In response to the opportunity provided by Alvarez, Taxpayer (through Marylis) obtained affidavits from numerous captains of foreign vessels and shipping agents. Those affidavits read, in pertinent part: I, [name inserted] , am the Captain aboard the vessel [name inserted] from [place of origin]. I am personally aware that Speros International Ship Supply Co., Inc. sells various commodities, supplies, clothing, and various sundry items to for eign ship personnel by delivering the said items to the ships docked at various termi- nals inside the Tampa Port Authority and other locations in Tampa, Florida from [date] to the present. (Testimony of Marylis; Exhibit 8.) Moreover, in an attempt to comply with the tax law and avoid similar problems in the future, Taxpayer printed receipt books to be used in all future on-board sales. The receipts reflect the type of goods sold, the date of delivery to the vessel, the foreign vessel's destination, and the total purchase price. Also included is a signature line for the individual who delivers and receives the goods. (Testimony of Marylis; Exhibit 7.)
Recommendation Based on the foregoing, it is RECOMMENDED: That Department's proposed assessment of Taxpayer for delinquent sales tax, penalties, and interest, be issued as final agency action. DONE AND RECOMMENDED this 17th day of February, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. 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 17th day of February, 1982.
The Issue The issues are whether Respondent committed the violations alleged in Petitioner’s Second Amended Administrative Complaint; and, if so, what penalties should be imposed.
Findings Of Fact Based on the evidence adduced at the final hearing, the record as a whole, the stipulated facts, and matters subject to official recognition, the following Findings of Fact are made: The Parties and the Events of August 24, 2019 The Department is the state agency charged with encouraging the development of aquaculture3 in Florida. § 597.003(1), Fla. Stat. “When any qualified person desires to lease a part of the bottom, water column, or bed of any [state waters] for the purpose of growing oysters or clams . . . , he or she shall present to [the Department] a written application ” § 597.010(1), Fla. Stat. Mr. Lee and his father, Robert J. Lee, jointly hold Aquaculture Certificate of Registration No. AQ1529074. On January 5, 2016, they applied to the Department for a state owned submerged land aquaculture lease in the 2 Petitioner’s Exhibit G is a flash drive containing video footage of Officer Travis’s traffic stop and subsequent arrest of Mr. Lee. 3 Section 597.0015(1), defines “aquaculture” as “the cultivation of aquatic organisms.” Section 597.0015(3), defines “aquaculture products” as “aquatic organisms and any product derived from aquatic organisms that are owned and propagated, grown, or produced under controlled conditions.” vicinity of Alligator Harbor in Franklin County, Florida. The lease was to be used for the commercial cultivation of oysters and clams. The Department issued a ten-year lease, Sovereignty Submerged Land Aquaculture Lease No. 19-AQ-1465, to Mr. Lee and his father on February 3, 2016. One provision therein required the lessee to be bound by the current and future versions of the Florida Statutes and the Florida Administrative Code. Another provision stated that a violation of chapter 597 and/or chapter 5L-1 “may be cause for this lease to be terminated without further notice to the lessee and shall result in the forfeiture to lessor of the works, improvements, and shellfish in and upon the leased premises.” On June 15, 2017, Mr. Lee pled nolo contendere to several charges filed in Franklin County, Florida. Two of the aforementioned charges pertained to the criminal offenses of possessing untagged and undersized oysters, and Mr. Lee was adjudicated guilty of all charges. At approximately 3:00 a.m., on August 24, 2019, Officer David Travis of the Florida Fish and Wildlife Conservation Commission was on patrol in Carrabelle, Florida, and traveling west on US-98, 25 miles from Alligator Harbor. He observed a Chevrolet Tahoe pulling a boat4 that had no trailer lights. A Ford Fusion was closely following the Tahoe. Officer Travis then made a U-turn in order to initiate a traffic stop based on the lack of trailer lights and the failure of both vehicles to use their blinkers prior to making two turns. Mr. Lee was driving the Fusion, and a friend of Mr. Lee’s was driving the Tahoe. Upon inspecting the boat, Officer Travis saw four untagged baskets, one blue and three orange. The blue basket was completely full with at least 40 4 The boat was registered to Mr. Lee’s father. pounds of unculled5 oysters. The orange baskets were approximately the same size as the blue basket, and two of the orange baskets were at least 75 percent full with unculled oysters. The third orange basket contained 15 to 20 culled oysters. The boat and the contents therein were wet. Officer Travis found multiple pairs of wet gloves and one pair of wet socks inside a yellow oyster sack at the boat’s stern. At the bow, he found several casting nets that were soaking wet and containing fresh grass, mud, sand, and live crustaceans. Officer Travis also found a mullet in a cooler that appeared to have been recently caught. During an inspection of the Tahoe, Officer Travis found a large, white cooler with a large quantity of culled oysters in a bed of ice. According to Mr. Lee, those oysters were harvested from his Alligator Harbor lease on August 22, 2019, and were intended for personal consumption. Mr. Lee told Officer Travis during the traffic stop that he had taken the oysters described in paragraph 6 from his lease in Alligator Harbor on August 23, 2019, between 10:00 a.m. and 6:00 p.m. Mr. Lee further stated to Officer Travis that he had transported the oysters at issue to his girlfriend’s house in Carrabelle where he had begun to cull some of them. According to Mr. Lee, he and his girlfriend had gotten into an argument, and Mr. Lee decided to take the oysters to his father’s home in order to finish culling them. Mr. Lee and his friend were supposedly driving to Robert J. Lee’s home when Officer Travis pulled them over. Officer Travis arrested Mr. Lee and his friend. Ultimate Findings Count I of the Department’s Second Amended Administrative Complaint alleges that Mr. Lee violated rule 5L-1.007(2) on approximately 5 Wild oysters commonly grow together in clumps. “Culling” refers to the process by which wild oysters are separated from each other. The term can also encompass the cleaning, grading, and sorting of oysters. August 23, 2019, by failing to label containers holding oysters. Neither Officer Travis’s arrest report nor his testimony mentioned any tags on the baskets in the boat or the cooler in the Tahoe. Also, no tags are visible during the footage from Officer Travis’s body camera. While Mr. Lee testified that he had a bulk tag that applied to all of the containers at issue, the undersigned does not find Mr. Lee’s testimony to be credible. Accordingly, the Department proved Count I by clear and convincing evidence. Count II of the Department’s Second Amended Administrative Complaint alleges that Mr. Lee failed to timely deliver oysters to a certified processing facility on approximately August 23, 2019, as required by rule 5L- 1.008(7). The aforementioned rule requires that “shellfish shall be harvested between sunrise and sunset as established by the U.S. Weather Service.” As noted above, Officer Travis observed that the contents inside the boat were wet and fresh, and that evidence convincingly undermines Mr. Lee’s assertion that the oysters at issue were harvested on August 23, 2019, prior to 6:00 p.m. While Mr. Lee asserted that the oysters in question were intended for personal consumption rather than for sale, that assertion is undermined by the large number of oysters Officer Travis observed in the boat during the August 24, 2019, traffic stop. Therefore, the Department proved Count II by clear and convincing evidence. Count III of the Department’s Second Amended Administrative Complaint alleges that Mr. Lee violated rule 5L-3.004 on approximately August 23, 2019, by attempting to transport oysters to a private residence for sorting and washing rather than performing those activities over his lease. As noted above, Officer Travis observed a large quantity of unculled oysters during the traffic stop. Those oysters had not been sorted and washed over Mr. Lee’s lease. Also, the allegation in Count III is consistent with what Mr. Lee told Officer Travis during the traffic stop. Accordingly, the Department proved Count III by clear and convincing evidence. Count IV of the Department’s Second Amended Administrative Complaint alleges that Mr. Lee violated rules 5L-1.008(5)(a) and 5L- 3.007(8)(c) in December of 2018 by harvesting and replanting wild shellfish stock on the submerged lands of his lease. However, the Department presented no clear and convincing evidence that Mr. Lee violated rules 5L- 1.008(5)(a) and 5L-3.007(8)(c). Count V of the Department’s Second Amended Administrative Complaint alleges that Mr. Lee was convicted on June 15, 2017, of possessing untagged oysters in violation of section 597.0041(4). As noted above, Mr. Lee was adjudicated guilty on June 15, 2017, of possessing untagged and undersized oysters. The Department thus proved Count V by clear and convincing evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department impose a cumulative fine of $4,000.00 ($1,000.00 each) for Counts I through III and V. The undersigned also recommends that Aquaculture Certificate of Registration No. AQ1529074, jointly held by Mr. Lee and his father, be revoked. Finally, the undersigned recommends that Sovereignty Submerged Land Aquaculture Lease No. 19- AQ-1465 be terminated with Mr. Lee forfeiting all works, improvements, and shellfish in and upon the lease premises.6 6 Mr. Lee argued that his father’s interest in the Certificate of Registration and the lease at Alligator Harbor should not be extinguished because his father had no involvement with Mr. Lee’s violations. However, Mr. Lee offered no authority to support his argument, and the undersigned’s independent research did not find anything to support Mr. Lee’s position. DONE AND ENTERED this 20th day of November, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 20th day of November, 2020. COPIES FURNISHED: Robert Kevin Lee Post Office Box 28 Carrabelle, Florida 32322 Darby G. Shaw, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399 (eServed) Allan J. Charles, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399 (eServed) Stephen M. James, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 531 Tallahassee, Florida 32399 (eServed) Steven Hall, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 (eServed) Honorable Nicole “Nikki” Fried Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 (eServed)
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Cathy M. Sellers, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Notice of Voluntary Dismissal with Prejudice, a copy of which is attached, and incorporated by reference, in this Order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED and ADJUDGED that Respondent, Coconut Creek Automotive, LLC d/b/a Coconut Creek Subaru, be granted a license to sell motor vehicles manufactured by Subaru of America, Inc. (SUBA) at 4980 North State Road 7, Coconut Creek, (Broward County), Florida 33073, upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed April 30, 2012 9:03 AM Division of Administrative Hearings DONE AND ORDERED this 30 thday of April, 2012, in Tallahassee, Leon County, Florida. Julie/Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this 30¥h day of April, 2012. alini Vinayak, Dealer Wcense Administrator N NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jc Copies furnished: J. Gregory Humphries, Esquire Shutts and Bowen, LLP 300 South Orange Avenue, Suite 1000 Orlando, Florida 32801 Ed Appleby Coconut Creek Automotive, LLC 4980 North State Road 7 Coconut Creek, Florida 33073 J. Andrew Bertron, Esquire Nelson, Mullins, Riley, And Scarborough, LLP Suite 202 3600 Maclay Boulevard South Tallahassee, Florida 32312 Eric Scott Adams, Esquire Shutts and Bowen, LLP Suite 300 4301 West Boy Scout Boulevard Tampa, Florida 33607 Cathy M. Sellers Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 Nalini Vinayak Dealer License Administrator
Findings Of Fact Petitioner is incorporated under the laws of the State of Virginia and is registered to conduct business in the State of Florida. Robinson's of Florida is a Division of Petitioner, and is currently engaged in the sale of merchandise and retail through four Robinson's of Florida department stores situated in the Florida counties of Pinellas, Orange, Hillsborough and Seminole. Respondent is an agency of the State of Florida whose duties include the assessment of taxes and penalties imposed under Chapter 201, F.S. An unspecified portion of Robinson's retail sales in Florida is made pursuant to revolving charge agreements between Robinson's and its customers. These sales are made under retail charge agreements (Petitioner's Exhibit 1) which provide that in consideration of credit to be extended by Robinson's of Florida, the customer agrees to pay the full amount owing on the account within 25 days from the billing date of each monthly statement or monthly payments of not less than the payment required by a table included in the agreement which lists minimum monthly payments based upon the unpaid balance of the account. The agreement further provides that in case of a failure to pay the minimum payment due on the monthly statement, that the amount shown as the new balance on the monthly statement shall at the option of Robinson's become due and payable immediately. It provides that the charge card issued to the customer may be terminated or revoked at any time and must be surrendered to Robinson's upon demand. It states that the agreement constitutes a "revolving account" within the meaning of Section 2 subsection 8 of the Florida Retail Installment Sales Act, Chapter 59-414, Laws of Florida, 1959. Each time a customer purchases merchandise pursuant to a Robinson's revolving charge account, he executes a sales ticket (petitioner's Exhibit No. 2 and Exhibit B to Petition) which includes the following printed statement on the face of the ticket. "I agree to pay the total amount of this sales check in accordance with my credit arrangements with you." During March, 1975, Respondent conducted an audit of all of Robinson's revolving charge account sales records in its Florida stores. As a result of the audit, Respondent issued to Petitioner a proposed notice of assessment of tax and penalty under Chapter 201, F.S., dated March 20, 1975, (Exhibit C to Petition). The proposed notice of assessment requested payment of documentary stamp taxes in the amount of $17,925.00, pursuant to Section 201.08(2), F.S., and a penalty in -- the same amount pursuant to Section 201.17(2), F.S., (Exhibit's C & E to Petition). Petitioner requested and was afforded an opportunity to meet with a representative of Respondent for the purpose of objecting to the aforementioned assessment of taxes and penalty on May 6, 1975, in St. Petersburg, Florida. Subsequent to this conference, Petitioner received a letter dated May 9, 1975, from Respondent reaffirming the proposed total assessment and penalty in the total amount of $35,850.00 (Exhibit E to Petition). No evidence has been presented that documentary tax stamps for the sales in question were purchased, affixed to, or placed on the instruments in question.
Recommendation It is recommended: That the proposed assessment of documentary stamp taxes against the Petitioner in the amount of $17,925.00 under Section 201.08(2), Florida Statutes, be determined valid, and that collection thereof be made in accordance with appropriate law and regulations. That the proposed assessment of a penalty against thee Petitioner in the amount of $17,925.00 under Section 201.17(2), Florida Statutes, be determined invalid and set aside. DONE and ORDERED this 30th day of September, 1975, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Larry Levy, Esquire James D. Beasley, Esquire Assistant Attorney General P.O. Box 391 Department of Legal Affairs Tallahassee, Florida The Capitol For the Petitioner Tallahassee, Florida 32304 For the Respondent ================================================================= AGENCY FINAL ORDER =================================================================
The Issue The issue is whether the Department of Revenue’s audit assessment of tax and interest against Petitioner, Dolphin Tanker Systems, Inc., issued on June 15, 2004, should be sustained.
Findings Of Fact Dolphin Systems is incorporated and domiciled in the State of Florida, having its principal place of business located at 3255 Mulford Road, Mulberry, Florida. Dolphin Systems sells water tanks and trucks to construction contractors and equipment dealers, both domestic and foreign. Products are sold and delivered within the state and also exported to other states and countries. Dolphin Systems is a "dealer" within the meaning of Subsection 212.06(2)(c), Florida Statutes (2003).1/ On or about May 9, 2003, the Department notified Petitioner that it would conduct an audit of Dolphin Systems business. The audit period was from April 1, 2000 through March 31, 2003. The Department and Dolphin Systems agreed that the audit would be conducted by the sampling method. See § 212.12(6)(c)1., Fla. Stat. On January 5, 2004, the Department concluded its record review and issued its Notice of Intent to Make Audit Changes ("NOI"). The NOI showed that Dolphin Systems owed the Department additional sales and use tax in the amount of $92,093.92, penalties in the amount of $23,023.48, and interest in the amount of $23,661.54. Dolphin Systems requested an audit conference to review the factual circumstances and reasons for the Department’s adjustments. During the conference, additional records were provided which resulted in a revision to the NOI (Revision No. 1). A subsequent revision to the NOI occurred on April 20, 2004 (Revision No. 2). On June 15, 2004, the Department sent Dolphin Systems a Notice of Proposed Assessment which indicated that Dolphin Systems owed the Department additional sales and use tax in the amount of $30,302.69; and interest through June 14, 2004, in the amount of $9,268.14, making a total assessment of $39,570.83. Determined Facts Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings are made: The Department is authorized to conduct audits of taxpayers and to request information to ascertain their tax liability, if any, pursuant to Section 213.34, Florida Statutes. In May 2003, the Department initiated an audit of Dolphin Systems to determine whether Dolphin Systems was properly collecting and remitting sales and use tax to the Department. During the audit period, April 1, 2000 through March 31, 2003, Dolphin Systems purchased inventory, fixed assets, and other tangible property for use in its business. Additional tax was determined to be due (at the combined rate of 6.75 percent) on the general, fixed asset and inventory purchases made by Dolphin Systems during the audit period for which sales tax was either not paid to the vendor or where Dolphin Systems did not accrue the correct amount of use tax. Exempt Sales The Department’s work papers identify sales for which adequate documentation was not provided to support Petitioner's claimed exempt status. Specifically, Petitioner had no resale exemption certificates from sales made to either Florida dealers or to non-Florida dealers. There was no evidence that the item was or would be exported out of state. By its own terms, Invoice No. 2423 relates to a transaction that describes a New Dolphin 3500 gallon tank; Berkeley water pump; spray heads; and wash-down hose with reel, air controls in cab, primed, painted, decaled, and mounted on a provided chassis. Invoice No. 2423 reflects a sales price of $13,500.00, but does not show that sales tax was collected on the transaction. Dolphin Systems contends that the transaction involving Invoice No. 2423 is exempt from sales tax because it was an out-of-state sale. If RSV and Associates took possession of the property in Florida, but could document that there was uninterrupted export of the goods/property out of the country or a statement from the vendor that the property went out of the State of Florida for resale, that sale would be exempt from sales tax. However, Dolphin Systems provided no such documentation to the Department. To support its claim that the item was an out-of-state sale, Dolphin Systems provided shipping documentation which purported to show that the item listed on Invoice No. 2423 had been shipped to Puerto Rico. The unsigned shipping document described the property being shipped to Puerto Rico as a two- door white 1994 International truck. However, because the item listed on Invoice No. 2423 was different from the property noted on the unsigned shipping document, the Department could not tie the two records together. Therefore, the Department appropriately concluded that there was no basis for exempting the transaction reflected in Invoice No. 2423. Other Income The Notice of Proposed Assessment assessed sales tax on $62,500.00, which Dolphin System had categorized as "Other Income" on its Federal income tax return for the year 2000, Form 1120 ("2000 Tax Return"). The Department based this assessment on its work papers identified as "other income" for which adequate documentation was not provided to support the claim that tax had been remitted. Petitioner reported $62,500.00 in "other income" on its 2000 Tax Return and on its trial balance. No reconciliation of income per books, with income per return, was entered for this event. This income was not included on the state sales tax return for that period; and, therefore, it was properly scheduled as an exception. The Department included the $62,500.00 because Petitioner reported the income both on its financial statements and 2000 Tax Return. Because Petitioner uses the accrual method, events that gave rise to the creation of income are reported in the year the event took place. Accordingly, the "other income" is properly attributable to the year 2000. In response to the assessment, Dolphin Systems claimed that the $62,500.00 represented collection of a "bad debt," and the transaction represented a cash receipt of $62,500.00 from a settlement in a lawsuit for an unpaid invoice from prior years. As support for this claim, Dolphin Systems presented the Department with a copy of a Final Judgment in Dolphin System's favor. According to the Final Judgment dated September 1999, Kimmins Contracting Corporation ("Kimmins Contracting") was indebted to Dolphin Systems for $59,300.00, plus sales tax of $3,595.50, for a total of $62,895.50 for property sold and delivered between June 16, 1998 and July 8, 1998. There is no dispute that this property was taxable. Dolphin Systems also contended that in July 1998, it reported and remitted to the Department the sales tax on the property sold and delivered to Kimmins Contracting, even though Kimmins Contracting had not yet paid for the property or the sales tax thereon. As additional support for its claim, Dolphin Systems submitted to the Department a Sales and Use Return for the collection period July 1998, which showed a taxable amount of $100,000.00 and taxes collected as $6,112.50. Moreover, there was a discrepancy between the amount of gross sales on Petitioner's 2000 Tax Return and the gross sales reported for sales tax purposes to the Department on Form DR-15. Notwithstanding Petitioner's claim, there was no supporting documentation to either explain the discrepancy or to establish that Petitioner had already paid sales tax on the "other income." In the absence of any back-up data, the Department appropriately concluded that the foregoing Sales and Tax Use Return did not show that the sales tax for tangible personal property sold to Kimmins Contracting was included in the amount of sales taxes reported and remitted to the Department in July 1998. General Purchases The Department's work papers identify general purchases from various vendors for which adequate documentation was not provided to show that either tax was paid on the purchase or that it was exempt as a purchase for resale. In some instances, no invoices were presented; in which case, the Department could not determine that sales tax had, in fact, been paid. In other instances, invoices existed, but there was no documentation showing the purchase was for resale. Dolphin Systems is in the business of purchasing and/or building and repairing tankers for resale. When tankers are purchased for resale and this can be documented, there is no tax on the item. Here, Dolphin Systems claimed, but was unable to document, that certain items were for resale. Without such documentation, the Department properly scheduled the items included in the Notice of Proposed Assessment. Items normally purchased for resale are recorded in the cost of goods sold account, not in office supplies or shop supplies account. The items contained in these accounts normally are for items used in the business, and since they are being used, sales tax is due. Likewise, as in this case, reimbursement to the owner for credit card purchases, unless Petitioner documented the reason for each purchase, is a taxable use. In accordance with the Notice of Proposed Assessment, the Department properly assessed Dolphin Systems $30,302.69 for taxes and $9,268.14 for interest through June 15, 2004. Additionally, Dolphin Systems in liable for daily interest to be computed from June 16, 2004, at 6.64 per day. The Department has waived all penalties. There are no "other" penalties.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue issue a final order sustaining the assessment for sales and use tax and interest against Petitioner. DONE AND ENTERED this 7th day of April, 2005, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 April, 2005.
Findings Of Fact Petitioner is engaged in the cattle business and sells these cattle to in-state and out-of-state buyers who purchase the cattle at Clewiston, Florida, and have them transported either by the purchaser's own equipment or by a commercial carrier to their in-state or out-of-state destination. Those sales determined to be out-of-state sales are not included in the numerator of the fraction used to compute what percentage of Petitioner's income results from Florida sales and is therefore subject to Florida income tax. In making the determination respecting out-of-state sales Respondent applies the destination test if the cattle are shipped by common carrier but treats all other carriers as agents of the buyer to whom the cattle are delivered at Clewiston, thereby making such sales in-state sales. It is this policy determination which Petitioner contends is a rule. The policy has not been promulgated in accordance with Chapter 120, Florida Statutes, and, if this interpretation constitutes a rule, it is invalid because it was never promulgated as required. In determining whether certain sales are subject to the Florida sales tax, the Legislature in Section 212.06(5)(a), Florida Statutes, excluded from tax that tangible property imported or manufactured for export and provided such tangible property shall not be considered as being manufactured for export unless the manufacturer delivers the same to a licensed exporter for exporting or to a common carrier for shipment outside the State or mails the same by United States Mail to a destination outside the State. The rationale of the sales tax provision is used by Respondent in determining whether the sales are in-state sales for the purpose of computing Florida income tax. Respondent has promulgated, to its auditors, as a policy and as an interpretation of the statute, the directive to apply the destination test in determining out-of-state sales only when the merchandise sold is shipped by common carrier to a destination out of state. It is this policy determination or interpretation of the statutes that Petitioner contends is a rule and attacks in these proceedings. In the testimony Respondent acknowledged that this policy determination is uniformly applied. It also has application both within and outside the agency. Respondent further testified that if the merchandise (here cattle) had been delivered by Petitioner to the buyer outside the State of Florida by any means of transportation Petitioner chose, it would have treated the sale as an out-of-state sale.
The Issue Whether or not on or about May 25, 1977, the Respondent licensed under the beverage laws and/its agent, servant, or employee, employed by salary or on a contractual basis to entertain, perform or work upon the licensed premises, to wit: Lisa Palov Clark, aka Di Di Bang Bang, did beg or solicit a customer or patron, to wit; Deputy Ernest Weaver, on the Respondent's licensed premises, to purchase a beverage, alcoholic or otherwise, for Respondent, its agent, servant, or employee or entertainer, contrary to Section 562.131(1) F.S. There was noticed for hearing a second count to the Notice to Show Cause which was not heard due to the motion to withdraw the count, made by the Petitioner.
Findings Of Fact The Respondent, Golden Dolphin Number One, doing business as Golden Dolphin, is the holder of license number 15-229, Series 2-COP, held with the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco. This license is for operation at a location at 6107 North Atlantic Avenue, CAPS Canaveral, Florida. The operative period of the license is from October 1, 1976 through September 30, 1977. A copy of the license may be found as part of Petitioner's composite exhibit #1 admitted into evidence. On May 25, 1977, Lisa Palov Clark, also known as Di Di Bang Bang, was actively employed on the licensed premises, by the licensee. Ms. Clark's employment was as an entertainer, specifically a dancer. On the subject evening of May 25, 1977, Officer Ernest Weaver of the Brevard County, Florida Sheriff's Office, and Beverage Officer Eugene P. Fogle, entered the licensed premises around 9:00 p.m. and took seats in separate locations. They observed the floor shows being presented on the licensed premises, which shows were nude dancers and striptease. One of the dancers was Lisa Palov Clark. After completing her dance, Ms. Clark went to the dressing- room area of the licensed premises and then returned to the area occupied by the patrons. When she returned, she approached the table at which Officer Weaver was seated. She approached him without being requested by Officer Weaver either orally or by gesture. When she arrived at the table, she made the comment to Officer Weaver either to the effect "Can I have a drink?" or "Won't you let me order something?". Officer Weaver in his testimony at the hearing was uncertain of the exact statement made by Ms. Clark. Subsequent to the aforementioned comment, in whatever form it took, Ms. Clark stated that she felt hot and that her neck was wet. These comments were directed to Officer Weaver. During the course of this conversation, a waitress came and stood by the table at which Officer Weaver was seated. The waitress did not participate in the conversation between Ms. Clark and Officer Weaver. Officer Weaver, in response to Ms. Clark's comments, asked what she would like to drink, and Ms. Clark indicated that she would like champagne, one drink of which costs $2.75 and a pony bottle cost $6.00. The waitress then stated, "What will it be?" and Officer Weaver said, "Bring one of the $6.00 bottles." The waitress brought a bottle and at least one glass. The bottle was placed on the floor between Officer Weaver and Ms. Clark. The glass was positioned in the place at which Ms. Clark was seated and a drink was poured for her. Officer Weaver paid $6.00 plus a tip to the waitress. (There was some discussion about a possible second bottle which was purchased, but the recollection of witnesses was not sufficient to establish the existence of such a second bottle of champagne.) There was no testimony about the knowledge of the activities between Officer Weaver, Ms. Clark, and the waitress, from the point of view of any of the officers, directors, or owners of the licensed premises. Moreover, it was not established that any manager in charge of the licensed premises observed the interchange between Officer Weaver, Ms. Clark and the waitress. The facts as established, constitute a sufficient basis to show that the employee of the licensee, to wit, Lisa Palov Clark, employed on the licensed premises to entertain, perform or work, did beg or solicit a patron or customer on the licensed premises to purchase a beverage in violation of Section 562.131, F.S. However, even though the employee violated this law, the licensee was not culpable based upon any willful intent, negligence or lack of due diligence. See Trader Jon Inc. vs. State Beverage Department, 119 So.2d 735 (1st DCA 1960). Additionally, the testimony indicated that the licensee in the person of Milton Seidman had instructed the employee Ms. Clark not to solicit drinks. Finally, to penalize the licensee under s. 561.29, F.S., there must be a showing of more than an isolated incident as is the case here. See Taylor v. State Beverage Department, 194 So.2d 321 (2d DCA, 1967).
Recommendation It is recommended that the licensee, Golden Dolphin Number One, d/b/a Golden Dolphin, operating under licensee number 15-229, to do business at 6107 North Atlantic Avenue, CAPS Canaveral, Florida, be relieved of the necessity to make further answer to the Notice to Show Cause which is the subject of this hearing. DONE and ENTERED this 6th day of October, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Lawrence D. Winson, Esquire Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32304 Lawrence M. Litus, Esquire 231 East New Haven Melbourne, Florida 32901
The Issue Whether the Florida Fish and Wildlife Conservation Commission (“the Commission”) correctly determined that a sailboat owned by Jeffrey Sundwall was a “derelict vessel” within the meaning of section 823.11(1)(b)1., Florida Statutes (2017),1 and thus subject to sections 376.15(3)(a) and 705.103, Florida Statutes.
Findings Of Fact Based on the evidence adduced at the final hearing, and the record as a whole, the following Findings of Fact are made: The Parties The Commission is empowered to remove, or cause to be removed, derelict vessels from Florida’s public waters. §§ 376.15(3)(a) and 823.11(3), Fla. Stat. A vessel is considered to be “derelict” if it is left, stored, or abandoned “[i]n a wrecked, junked, or substantially dismantled condition upon any public waters of this state.” § 823.11(1)(b)1., Fla. Stat. Mr. Sundwall was the registered owner of a 28-foot sailboat named the Sea Joy. Facts Specific to the Instant Case Lieutenant Andy Cox of the Commission found the Sea Joy anchored off Wisteria Island in the Florida Keys on March 27, 2017. The Sea Joy had an expired registration decal, and a large amount of seaweed on the outboard motor, which probably rendered the motor inoperative. The Sea Joy had been left open and exposed to the elements, and Lieutenant Cox observed one-inch deep, green water inside the vessel. Lieutenant Cox also determined that the Sea Joy had no working bilge pumps or battery power. Lieutenant Cox initiated a derelict vessel investigation. While the Commission did not take custody of the Sea Joy at that time, Lieutenant Cox affixed a large, red sticker to the Sea Joy announcing that the vessel’s owner had 5 days before the Commission disposed of it pursuant to its authority under chapter 705. Lieutenant Cox met with Mr. Sundwall on approximately March 28, 2017, in a Florida Keys jail and served him with three infraction citations. Lieutenant Cox also provided Mr. Sundwall with a written notice indicating the Commission considered the Sea Joy to be a derelict vessel. On July 24, 2017, the County Court for Monroe County issued an Order requiring the Monroe County Sheriff’s Office and the Commission to preserve the Sea Joy as essential evidence in a criminal case against Mr. Sundwall. Thus, the Sea Joy could not be “destroyed, removed, altered, moved, or otherwise disposed of.” After Hurricane Irma struck Florida in September of 2017 and wrecked several hundred vessels, the Commission partnered with the Coast Guard in an effort to identify and remove derelict vessels. If an owner of a derelict vessel waived his or her ownership interest, then the State of Florida would not charge for a vessel’s removal and disposal.2 Wisteria Island is owned by the FEB Corporation. In November of 2017, the Commission found the Sea Joy hard aground on the shore of Wisteria Island, and the Sea Joy could not be moved without mechanical assistance. The Sea Joy had no mast or sail, and the vessel was still left open and exposed to the elements. In sum, the Sea Joy was nothing more than a hull at that point. Contemporaneous photographs and video of the Sea Joy indicate that it was resting on “wrack lines” left by the tide. Those wrack lines demonstrated that the Sea Joy was on public waters at high tide.3 In response to a request for reconsideration from the State of Florida, the Monroe County Court issued an Order on December 12, 2017, allowing the State to remove the Sea Joy from Wisteria Island. On December 17, 2017, the Commission transported the Sea Joy to a marina in Marathon, Florida. 2 The Commission’s attorney announced during the final hearing that the Commission would not seek to recover the costs of removing and disposing of the Sea Joy from Mr. Sundwall. Ordinarily, the owner of a derelict vessel is responsible for all costs associated with its removal and destruction. See §§ 376.15(3)(a), 705.103(4), and 823.11(3)(b), Fla. Stat. However, in the aftermath of Hurricane Irma, the State of Florida assumed all of those costs. 3 This finding is based on the testimony of Major Robert Rowe of the Commission, and the undersigned found him to be a credible and persuasive witness. Officer David Bellville of the Commission met with Mr. Sundwall on January 4, 2018, at the Stock Island Detention Center in Key West. Officer Bellville served Mr. Sundwall with a notice stating that he had 30 days to take possession of the Sea Joy or it would be destroyed pursuant to the Commission’s authority under chapter 705. Officer Bellville also served Mr. Sundwall with an election of rights form stating he had 21 days to protest the Commission’s proposed action. Mr. Sundwall declined to waive his property interest in the Sea Joy and ultimately executed the election of rights form and a request for an administrative hearing on January 20, 2018. Mr. Sundwall’s hearing request was postmarked on January 23, 2018, and received by the Commission on January 29, 2018. Because Mr. Sundwall’s documents were received after the 21-day deadline, the Commission had the Sea Joy destroyed on February 21, 2018, and issued an Order on March 6, 2018, dismissing Mr. Sundwall’s hearing request with prejudice. Mr. Sundwall appealed the Commission’s Order to the First District Court of Appeal, and the appellate court issued an opinion in Sundwall v. Florida Fish & Wildlife Conservation Commission, 271 So. 3d 1239 (Fla. 1st DCA 2019), on May 16, 2019, reversing and remanding the Commission’s dismissal: After Hurricane Irma struck Florida in 2017, the Florida Fish and Wildlife Conservation Commission (FWC) identified Mr. Sundwall as the owner of a boat declared derelict upon the waters of Florida. See § 823.11, Fla. Stat. (2017) (defining derelict vessels and empowering FWC to deal with them). Mr. Sundwall was incarcerated at the time. FWC sent Mr. Sundwall notice of the declaration, an explanation of his rights, an Election of Rights form, and a form for a Petition for Administrative Proceeding. The notice stated that a failure to make any election within twenty-one days from receipt of the notice would constitute a waiver of the right to a hearing. Mr. Sundwall signed a receipt for these documents on January 4, 2018. The twenty-first day after that fell on January 25, 2018. He signed the Election of Rights form, requesting a hearing; and also completed the Petition for Administrative Proceeding, dating both of his signatures January 20, 2018. There was no certificate of service or institutional date stamp on any of the papers, nor any institutional mail log indicating when he gave the papers to prison officials. The envelope was postmarked January 23, 2018. FWC stamped it as received on January 29, 2018. FWC dismissed the petition with prejudice because FWC did not receive it within twenty-one days and Mr. Sundwall did not request an extension within that period. FWC's order of dismissal acknowledged that the envelope from Mr. Sundwall was postmarked January 23, 2018. However, FWC relied on Florida Administrative Code Rule 28- 106.104(1), which defines filing as receipt by the agency clerk during normal business hours. In his pro-se brief, Mr. Sundwall relies on the January 20 date of his signatures and the January 23 postmark date, arguing that he is entitled to the benefit of the prison mailbox rule under Haag v. State, 591 So. 2d 614 (Fla. 1992). FWC does not dispute that argument, but argues that Mr. Sundwall provided no proof that he placed his papers in the hands of prison officials before expiration of the deadline; i.e., no institutional mail stamp or log and no certificate of service. The record does not reflect whether Mr. Sundwall’s institution utilizes dated mail stamps or logs, but one reason there were no certificates of service is because none of the forms that FWC supplied to him contained a certificate of service. In a literal sense, however, Mr. Sundwall "provided" FWC a postmarked envelope that evidences timeliness. He argues on appeal that FWC calculated the time erroneously, and he points out that the envelope was postmarked on January 23. The postmark date was before expiration of the twenty-one-day period for requesting a hearing, and therefore the petition necessarily was submitted to prison officials before the deadline. FWC acknowledged the postmark date in its order of dismissal, and the postmarked envelope is in the record. We therefore reverse the order of dismissal and remand for further proceedings on Mr. Sundwall's petition.[4] Ultimate Findings There is no dispute that the Sea Joy was a “vessel” within the meaning of section 327.02(46), Florida Statutes. When it was beached on Wisteria Island, the Sea Joy was a “derelict vessel” within the meaning of section 823.11(1)(b)1. It was left or abandoned in a wrecked, junked, or substantially dismantled condition upon the public waters of this state. While the Sea Joy no longer exists, the photographic evidence and the witness testimony conclusively demonstrate that it was wrecked or substantially dismantled by the time it ran aground on Wisteria Island. The photographic evidence also demonstrated that the Sea Joy was upon the State of Florida’s public waters at high tide. Mr. Sundwall made several factual arguments during the final hearing. For instance, section 823.11(1)(b)3. defines a “derelict vessel” as one that is “[d]ocked, grounded, or beached upon the property of another without the consent of the owner of the property.” Mr. Sundwall testified that he had permission for the Sea Joy to be on Wisteria Island. Mr. Sundwall’s argument is not persuasive because the Commission determined the Sea Joy to be a 4 To whatever extent that Mr. Sundwall is seeking damages from the Commission for the Sea Joy’s destruction, he must pursue that claim before a different tribunal. DOAH’s role in this matter is limited to making findings as to whether the Sea Joy was a “derelict vessel” within the meaning of section 823.11(1)(b)1. and thus subject to sections 376.15(3)(a) and 705.103. derelict vessel pursuant to section 823.11(1)(b)1., not section 823.11(1)(b)3. However, even if the Commission had deemed the Sea Joy to be derelict pursuant to section 823.11(1)(b)3., Mr. Sundwall’s testimony that he had permission to keep the Sea Joy on the shore of Wisteria Island was uncorroborated and unpersuasive. In preparation to take control of the Sea Joy, Mr. Sundwall asserted that a friend of his had attempted to inspect the Sea Joy while it was beached on Wisteria Island. He claimed that the Commission forced Mr. Sundwall’s friend away from the wrecked vessel. Because the Commission was dealing with several hundred displaced vessels in the aftermath of Hurricane Irma, it is very unlikely that the Commission would have been in a position (or to have been inclined) to prevent any willing person from removing the derelict Sea Joy from Wisteria Island or inspecting it. Moreover, the undersigned generally found Mr. Sundwall’s testimony on this point to be unpersuasive and self-serving. Mr. Sundwall’s witnesses did not present any persuasive testimony to corroborate his assertions. Mr. Sundwall also argued that the instant case is part of the Commission’s ongoing effort to retaliate against him for undermining a criminal investigation. Even if that were the case, there is no evidence that the Commission left the Sea Joy anchored off Wisteria Island or caused it to become a derelict vessel. Mr. Sundwall asserts that he has been denied due process. However, the facts refute that assertion because: (a) he was given notice of the Commission’s proposed action to dispose of the Sea Joy; (b) he had an opportunity to request a hearing; (c) his case was referred to DOAH; and (d) a formal administrative hearing was conducted on February 7, 2020, at which he fully participated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission issue a Final Order deeming the Sea Joy to have been a “derelict vessel” within the meaning of section 823.11(1)(b)1. and that the Commission was authorized under section 376.15(3)(a) to relocate or remove the Sea Joy. DONE AND ENTERED this 1st day of June, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 1st day of June, 2020. COPIES FURNISHED: Brandy Elaine Elliott, Esquire Florida Fish & Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 (eServed) Jeffrey Ray Sundwall, 829113 Jackson Correctional Institution 5563 10th Street Malone, Florida 32445 Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Emily Norton, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
