findings of fact conclusions of law€¦ · · 2013-01-24department pursuant to section 212.18,...
TRANSCRIPT
~~~~~-"---"-_.- .- ....,,-_._--~------_.- - - -------_._._.-----
STATE OF FLORIDADEPARTMENT OF REVENUE
STATE OF FLORIDA,DEPARTMENT OF REVENUE
Petitioner,
vs.
COLORCARS EXPERIENCEDAUTOMOBILES, INC. NIKIAEXPERIENCED VEHICLES, INC.,
Respondent.
-------- --:1
DOR 2013-001 - FOFFILED
Departme~ofRevenue - Agency ClerkDatelilep~ "'-6' zl/·,a-D13By: l.1.pJUJL . rAlW/\
DOR Case No.: DOR-12-41 ACDOAH Case No.: 12-1956
FINAL ORDER
This cause came before the State of Florida, Department of Revenue
("Department"), for the purpose of issuing a final order. On April 24,2012, the
Department issued an Administrative Complaint ("Complaint") against Respondent. A
true and correct copy of the Complaint is attached hereto and incorporated herein by
reference as Exhibit 1. The Complaint sought to revoke Respondent's certificate of
registration/permit/license, in accordance with Sections 212.18 and 213.692, Florida
Statutes, due to Respondent's non-compliance with Chapter 212, Florida Statutes.
In response to the Complaint, Respondent elected a disputed fact hearing
pursuant to Subsection 120.57(1), Florida Statutes, which was held by the Division of
Administrative Hearings on September 20, 2012. Judge Elizabeth W. McArthur issued
a recommended order on December 13, 2012. A true and correct copy of the
recommended order is attached hereto and incorporated by reference as Exhibit 2.
1
-- ------------------ ------
RULINGS ON EXCEPTIONS
On December 26,2012 Respondent timely filed thirteen (13) exceptions to the
Recommended Order. Pursuant to Subsection 120.57(1)(k), Florida Statutes, a Final
Order issued as a result of a Recommended Order:
[S]hall include an explicit ruling on each exception, but an agencyneed not rule on an exception that does not clearly identify thedisputed portion of the recommended order by page number orparagraph, that does not identify the legal basis for the exception,or that does not include appropriate and specific citations to therecord. (emphasis added)
This statutory pleading requirement provides a three-prong threshold for
exceptions to a Recommended Order that must be explicitly ruled upon in a Final
Order. While each of Respondent's exceptions identifies the page number and
paragraph to which exception is being taken, none include a specific citation to the
record, and most do not include any legal basis for the exception. Thus, Respondent's
exceptions do not meet the pleading requirements set forth in Chapter 120 of the
Florida Statutes. A true and correct copy of the Respondent's exceptions filed herein is
attached hereto and incorporated herein by reference as Exhibit 3.
FINDINGS OF FACT
The Department hereby adopts and incorporates by reference the findings of fact
asset forth in the recommended order as the factual findings herein.
CONCLUSIONS OF LAW
The Department hereby adopts and incorporates by reference the conclusions of law as
set forth in the recommended order as the conclusions of law herein.
2
DETERMINATION
Accordingly, it is ORDERED:
That Respondent's Certificate of Registration, numbered 68-8011915593-0 is hereby
revoked.
ENGAGING IN THE BUSINESS OF SELLING OR LEASING TANGIBLEPERSONAL PROPERTY OR SERVICES OR ACTING AS A DEALERAFTER A CERTIFICATE HAS BEEN REVOKED IS PROHIBITED ANDCONSTITUTES A CRIME PUNISHABLE AS PROVIDED IN SECTION775.082 OR SECTION 775.083, FLORIDA STATUTES.
NOTICE OF RIGHT TO JUDICIAL REVIEW
Any party who is adversely affected by this final order has the right to seek
judicial review of the order under section 120.68, Florida Statutes, by filing a notice of
appeal under Rule 9.190 of the Florida Rules of Appellate Procedure with the Agency
Clerk of the Department of Revenue in the Office of the General Counsel, Post Office
Box 6668, Tallahassee, Florida 32314-6668 [FAX (850) 488-7112], AND by filing a
copy of the notice of appeal accompanied by the applicable filing fees with the District
Court of Appeal, First District or with the District Court of Appeal in the appellate district
where the party resides. The notice of appeal must be filed within 30 days from the
date this order is filed with the clerk of the Department.
3
":+11\ENTERED in Tallahassee, Leon County, Florida, this 1f Y \ day of
~~ ,;}o/3
State of FloridaDEPARTMENT OF REVENUE
Marshall StranburgInterim Executive Director
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the foregoing Final Order has been filed in the official
records of the Florida Department of Revenue and that a true and correct copy of the
Final Order has been furnished by United States mail, both regular first class and
certified mail return receipt requested, to Respondent at: 2311 North Tamiami Trail,
Nokomis, Florida 34275-3474; POB 803 Osprey, Florida 34229; and C/O Robert Brian
Resnick at POB 1872, Boca Raton, Florida 33429-1872 this Qif%ay of
~UOv~ ,~.
Agency Clerk
Copies:
Judge Elizabeth W. McArthurDivision of Administrative HearingsThe DeSoto Building1230 Apalachee ParkwayTallahassee, Florida 32399-3060
John MikaAssistant Attorney GeneralOffice of the Attorney GeneralThe Capitol - Revenue Litigation SectionTallahassee, Florida 32399-1050
4
f
STATE OF FLORIDADEPARTMENT OF REVENUE
STATE OF FLORIDADEPARTMENT OF REVENUE
Petitioner,
v.
COLORCARS EXPERIENCEDAUTOMOBILES, INC., NIKIA EXPERIENCEDVEHICLES, INC.,
Respondent.________________1
Case No. DOR-12-41 AC
ADMINISTRATIVE COMPLAINT FOR .REVOCATION OF CERTIFICATE OF REGISTRATION
Petitioner, the DEPARTMENT OF REVENUE, hereafter referred to as
"Department," files this Administrative Complaint against COLORCARS EXPERIENCED
AUTOMOBILES, INC., N/KIA EXPERIENCED VEHICLES, INC., hereafter referred to as
"Respondent," and in support thereof alleges:
BASED ON THE FOLLOWING FACTS, AND PURSUANT TO------------'- .---..---SECT-IONS-120.60,-212.l8,-.AND-.213..692,__ELD.RIDA_STATUTES,_.THE__ .__ .. . .... _,_,__ ,
DEPARTMENT INTENDS TO REVOKE YOUR CERTIFICATE OFREGISTRATION ISSUED BY THE DEPARTMENT OF REVENUE TO
------ENGAGE 'IN"BUSINESS 'IN 'THE 'STATE OF FLORH;lA-.------------1
1. The Department is an agency of the State of Florida lawfully created
and organized pursuant to Section 20.21, Florida Statut~s. By law, the Department is
vested with the responsibility of collection and enforcement under the revenue laws of
the State of Florida, specifically, the taxes enumerated in Section 213.05, Florida
Statutes.
2. Respondent is an active Florida Profit Corporation.
3. Respondent's principal and mailing address is 2311 N: Tamiami Trail,
Nokomis, Florida 34275 and 2311 Tamiami Trail North, Nokomis, Florida 34275.
Respondent's mailing address i.s also P.O. Box 803, Osprey, Florida 34229.
EXHIBIT 1
Filed May 30, 2012 2:41 PM Division of Administrative Hearings
-- -~-- --- ---~ ~~-~~---._------~---
Respondent's Registered Agent is John T. Early, III located at 2311 N. Tamiami Trail,
Nokomis, Florida 34275.
4. Every person desiring to engage in or conduct business in this state as a
dealer, as defined in Chapter 212, Florida Statutes, must be registered by the
Department pursuant to Section 212.18, Florida Statutes, and Rule 12A-1.060, Florida
Administrative Code. Pursuant to Subsection 212.05(1), Florida Statutes, the
certificates of registration issued by the Department grant dealers the privilege of
engaging in or conducting business in this state.
5. Respondent is a "dealer" as that term is defined in Subsection 212.06(2),
Florida Statutes, and holds a certificate of registration issued by the Department.
6. Chapter 212, Florida Statutes, provides that sales and use tax shall be
collected and remitted to the Department by odealers.
7. In accordance with Subsections 212.15(1) and (2), Florida Statutes, the
taxes imposed pursuant to Chapter 212, Florida Statutes, become state funds at the
moment of collection, and the intentional failure to remit these taxes constitutes a theft
of state funds.
8. The Department is authorized to issue certificates of registration pursuant
to Section 212.18, Florida Statutes, and to revoke such registrations upon the failure of
a dealer to comply with the requirements of Chapter 2012, Florida Statutes, including but
not limited to, the requirement to pay taxes when due.
9. Section 213.692, Florida Statutes, authorizes the Department to revoke all----- - --- -------ocerfifica:fes-onegrstra:tioii-;-pe-rmfts~ and-lfcenses--issOEfffoy--tfjerDepartme"YitTcn:,na:5<-payer --- ------. -.. -- -00- 0-
against whom the Department has filed a warrant, notice of lien, or jUdgment lien
cenificate.
10. Respondent was subject to a sales and use tax audit for the period August
1, 2001 through July 31, 02004. This audit resulted in an assessment of $185,356.73 tax,
$27,806.47 penalty, $135,982.15 interest and $24,505.71 fees for a total of
$373,651.06, which has become final. The audit assessment is reflected in the chart
attached hereto and incorporated herein as Exhibit A to this Administrative Complaint.
11. Subsection 212.15(1), Florida Statutes, requires that dealers collect and
remit to the Department the taxes imposed by Chapter 212, Florida Statutes, on a
monthly basis. Taxes are dUE? on the first day of the succeeding calendar month and
shall be paid to the Department on or before the 20th of each month for taxes due the
preceding calendar month.2
------------------------
12. Subsection 212.14(3), Florida Statutes, provides that the filing of a return
not accompanied by payment is prima facie evidence of conversion of the money due.
13. As set forth more fully in the chart attached hereto and incorporated herein
as Exhibit A to this Administrative Complaint, Respondent failed to timely remit payment
for the sales tax due and owing pursuant to Chapter 212, Florida Statutes. Specifically,
for December 2011 and January 2012, as indicated on Exhibit A, Respondent filed .
returns but did not timely remit to the Department the sum of $1 ,401.16 in sales and use
tax reported on Respondent's filed returns in violation of Subsection 212.15(1), Florida
Statutes.
14. As set forth more fully in the chart attached hereto and incorporated herein
as Exhibit A to this Administrative Complaint, Respondent failed to remit payment for
interest due and owing pursuant to Subsection 212.12(3), Florida Statutes. Specifically,
due to Respondent's failure to timely pay the taxes due, the sum of $5.81 in interest is
due as of March 5, 2012. Interest continues to accrue at the statutory rate from the
aforementioned date until paid.
15. Asset forth more fully in the chart attached hereto an~ incorporated herein
as Exhibit A to this Administrative Complaint, Respondent failed to remit payment for
penalties due and owing pursuant to Subsection 212.12(2), Florida Statutes.
Specifically, due to Respondent's failure to timely pay the taxes due, the sum of
$140.12 in penalties, as of March 5, 2012.
16. Chapter 220, Florida Statutes, imposes a tax upon corporations as defined,'-"',, .." ,.-, ---in--gLib'section'ZZD:U3{1Xe)";'FIOfida..'Staliltes;"for'tnef-pl'iVileg'e of CO'nd'Lfcting' busilies's; .' ...'.- ---, -'.. -"-,-,,
deriving income, or existing within the State of Florida. . I--------117-.--Section-220 ~1"1-;-Plorida-Statutes;'imposes-aiax meas'l.:rred-bYllet-inc'D'me
upon taxpayers ("TaxpayerlTaxpayers''), as defined in Subsection 220.03(1)(z), Florida
Statutes.
18. Taxpayers subject to income tax pursuant to Chapter 220, Florida'
Statutes, are required to file a return with the Department for each taxable year in which
such Taxpayer either is liable for tax pursuant to Chapter 220, Florida Statutes, or is
required to make a federal income tax return, regardless of whether such Taxpayer is,
liable for tax pursuant to Chapter 220, Florida Statutes.
19. Returns filed pursuant to Chapter 220, Florida Statutes, must be filed as
providedin Section 220.222, Florida Statute~, according to type of organization/entity.
20. Pursuant to Subsection 220.703(1), Florida Statutes, the amount of tax3
shown due on any return shall be deemed assessed on the date of filing the return,
including any amended returns showing an increase of tax.
21. Respondent is a taxpayer as defined in Subsection 220.03(1)(z), Florida
Statutes, and is subject to the filing of returns and payment of income tax as provided in
Chapter 220, Florida Statutes.
22. As set forth more fully in the chart attached hereto and incorporated herein
as Exhibit B to this Administrative Complaint, Respondent failed to remit payment for
penalties due and owing pursuant to Subsections 220.801 and 220.803, Florida
Statutes. Specifically, due to Respondent's failure to timely file and/or timely pay the
income tax due, the sum of $250.00 in penalties and $25.00 in fees, is due as of March
5,2012.
23. The Department has issued and filed one or more warrants, notices of
lien, or judgment lien certificates in the public records for the collection of unpaid sales
and use tax and unpaid income tax directed against Respondent pursuant to
Subsections 212.15(4) and 220.813, Florida Statutes. True and accurate copies of
those documents are attached hereto and incorporated herein as Exhibit C to this
Administrative Complaint.
24. Based upon payments for amounts reflected herein, non-payment and
penalties for periods subsequent to those reflected herein; accrual of interest, accrual of
coflectiQn fees and accrual of other costs of collection, the specific amount of
Respondent's tax liabilities may increase or decrease between the effective date of any .- -.,.-, --'----affached-wo'rkslieef(s}iiricftlie·aate -ofa'r'lj·sOl5s·eqTientliearii'l'9'(s}:'-·--------------------. -------... ,--- --- ......--
25. A Notice of Conference on Revocation of Certificate of Registration
("Notice"tw8s-s'entio"Respondent"via'U:S:' certified-m·ail;-retarn,e·ce·ipt,-andiirst-clas·s-----~
mail, pursuant to Subsections 212.18(3) and 213.692(1 )(a), Florida Statutes, on
November 18, 2011. The United States Postal Service attempted delivery on November
21, 2011 and left a notice. The Notice was then hand delivered to Billie Baler,
Respondent's employee, on December 14, 2011, by Harry Williams, Revenue Specialist
III, of the Department. The notice explained that the Department had initiated the
process to revoke Respondent's certificate of registration and scheduled a conference
for January 18, 2012 to prOVide Respondent the opportunity to present evidence
. regarding the Department's intended revocation or enter into a Compliance Agreement
with the Department which resolves the Respondent's failure to comply with Chapters
212, Florida Statutes. Per the Respondent's request in a letter dated January 11, 2012,4
, .
the conference was rescheduled for March 7, 2012. A true and correct copy of the
Notice of Conference on Revocation of Certificate of Registration, as well as proof of its
service upon Respondent, a copy of Respondent's letter dated January 11,2012, and
the. Department's response dated January 30, 2012, are attached hereto and
incorporated herein as Exhibit D to this Administrative Complaint.
26. John T. Early, III, representing Respondent, did appear for the scheduled
conference but did not enter into a compliance agreement.
27. There is no pending dispute or protest concerning this debt.
28. The Department has complied with all conditions precedent to the filing of
this action.
WHEREFORE, the Department files its Administrative Complaint for Revocation
of Certificate of Registration, and requests that an order be entered revoking
Respondent's certificate of registration issued by the Department.
AS A RESULT OF THE FOREGOING, THIS IS NOTIFICATION OF THEDEPARTMENT'S INTENT TO REVOKE RESPONDENT'S CERTIFICATE OFREGISTRATION NUMBERED 68-8011915593-0 PURSUANT TO CHAPTERS 120and 212, FLORIDA STATUTES, AND THAT A FINAL ORDER WILL BE ENTEREDWITHOUT FURTHER NOTICE IF RESPONDENT DOES NOT REQUEST A HEARINGAS DESCRIBED BELOW.
NOTICE OF RIGHTS- •• 0. _ 0.__ ._" ~ • • __ ._.__ ••• • • 0 __ A __• __ • __ ._ • .__ __ _ _ _ _. •• __
You have the right to seek review of this Administrative Complaint in accordance
----w......it-;-h-,:::S,..-e-,ct".-io-n-s.....,.1=2A'"0."'5A'"69;;;:-and 12·0:s7~-FloricfaStatutes, by filing a request for an
administrative hearing. You may request either: 1) a formal hearing involving disputed
issues of material fact before the Division of Administrative Hearings, or 2) an informal
administrative hearing, NOT involving disputed issues of material fact before the
Department. All hearings are conducted in English. If you request a hearing in this
matter, you are entitled to at least fourteen (14) days notice prior to the hearing unless
all parties waive the fourteen (14) day notice requirement.
5
--- -- --~ -~------ -- -, -------------------
YOUR REQUEST FOR HEARING MUST BE FILED NO LATER THAN 21
DAYS FROM YOUR RECEIPT OF THIS ADMINISTRATIVE COMPLAINT TO:
Agency Clerk, Office of the General Counsel, Florida Department of Revenue, Post
Office Box 6668, Tallahassee, Florida 32314-6668. If your request for an administrative
hearing is not received by the Department no later than 21 days following receipt of this
Administrative Complaint, you lose your right to request an administrative hearing, and
the Department will enter a final order in this matter. The final order will revoke your
certificate of registration/permit/license and/or require such other relief as may be
authorized by Florida Statutes. The petition for hearing may be faxed to (850) 488-7112.
MANDATORY REQUIREMENTS FOR HEARING REQUESTS
A request for hearing must contain the information required by Subsection 28
106.2015(5), Florida Administrative Code, including:
1. Your name, address, telephone number, and facsimile number (if any).
2. The name, address, telephone number, and facsimile number of your attorney
or other representative (if any), which shall be the address for service of pleadings and
other papers during the course of the proceeding.
3. A statement requesting an administrative hearing and identifying those
material facts alleged in the Administrative Complaint which you dispute. If there
are no material facts alleged in the Administrative Complaint which are disputed, you---------- mu~£iri-dicate -thls'ln-your- requestTor-hearmg~-------'--' -- --.--..-----------.----.----- - - ----.---- -.-.----------.-------
4. A statement of when you received the Administrative Complaint.
------;5;-.=T;;-he-ca-s-e-n-u-niber reflected on"fhe first page of the Administrative Complaint.
If there is a disputed fact (formal) hearing, you have the right to be represented
by an attorney or qualified representative, bri~~ witnesses and eVidence, cross-examine
any witnesses produced against you by the state, and have subpoenas and subpoenas
duces tecum issued on your behalf. You will be notified of the location, date, and time
of the hearing by the Administrative Law Judge assigned to the case by the Division of
Administrative Hearings. You may file exceptions to the Administrative Law Judge's
Recommended Order with the Department of Revenue.
If there is a non-disputed fact (informal) hearing, you have the right to be. 6
represented by an attorney or qualified representative and you have the right to bring
witnesses and evidence, and provide the Department with any legal arguments that you
wish the Department to consider in opposition to the charges contained in this
Administrative Complaint. In a non-disputed fact (informal) hearing the facts alleged in
_the Administrative Complaint are deemed admitted and only evidence in mitigation of
the agency action to be taken may be presented. If you have requested an informal
proceeding, you will be notified as to the time, place and date of said hearing in writing
by the Department.
SECTION 120.573, FLORIDA STATUTES MEDIATION DISCLOSURE: This is
an action that may affect your substantial interests. Mediation of this administrative
dispute is not available. However, you may request a hearing on the charges; pursuant
to Chapter 120, Florida Statutes, and as further detailed in this Administrative
Complaint.
AMERICANS WITH DISABILITIES ACT: In accordance with the Americans with
Disabilities Act, persons .needing-a special accommodation to participate in this
proceeding should contact the Agency Clerk no later than seven (7) days prior to the
proceeding or hearing at which such special accommodation is required. The
Department Clerk may be contacted at: Office -of the General Counsel, Florida
Department of Revenue, Post Office Box 6668, Tallahassee, Florida 32314-6668; FAX--- ----- -"--'-'--(856f488:i11-2:1fyo(Tare-h-E)arTn~J"or-s'pe-e<5himpafrea,-p"lease'coi1tEiCf ffi'Elagency-6y--- -- --- ---, -- -- -- ,--
calling 1-800-955-8771 (TTY); or Dial 711 (TOO) and a Communications Assistant will
------,facilitateffie conversation.
7
Dated this :::l4- day of April, 2012 in Tallahassee, Florida.
Respectfully submitted,
\\.~>.~b~ \;I~",-,
ISABEL LUISA NOGUESFlorida Bar No. 0186805Assistant General CounselDepartment of RevenuePost Office Box 6668Tallahassee, Florida 32314-6668Telephone No. (850) 617-8347 .Facsimile No. (850) 488-7112
CERTIFICATE OF SERVICE
I hereby certify that the foregoing has been forwarded by certified mail, return
receipt requested, to Respondent at 2311 N. Tamiami Trail, Nokomis, Florida 34275; to
Respondent at 2311 Tamiami Trail North, Nokomis~ Florida 34275; to Respondent at
P.O.. Box 803, Osprey, Florida 34229; and to John T. Early, III at 2311 N. Tamiami Trail,
Nokomis, Florida 34275 this (\~ay of April, 2012.
-----Q~;~---,----_.ISABEL LUISA NOGUES
ILN/
8
-.
DBA I COLORCAns
Address 2311 Tamiami Trail North
City, 8t, Zip Nokomis, Florida 34275-3474
Open Date 28·,Jan-94 IW()rl~~hccl Eflectivc Dille I 05-Mar-12
Delinquencies SUT
WarrantEstima
Period/sYIN
Actual Due ted Penalty Interest Fees TotalDue
Jan-! 2N $ 519.56 $ 51.96 $ 1.59 $ 573.11$ -$ -.$ -$ -$ -$ -$ -$ -
$ -$ -
$ -$ -$ -$ -$ -$ -
.. -_._ .. -- ._- . - ......_........ $ -$
..... ._-_ .. -_._-_ .. --_. --_.--
$ -- .- ._..-. -' .. _e. ___..... 0••____ •••••• .. ..__ .. -,-. .. ...- ._ .. - $ -
$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -- $ -
Totals $ 519.56 $ - $ 51.96 $ 1.59 $ - $ 573.11
BillslNTAs
t:1VUTU T'T' A
II
Period/sWarrant
ActualEstima
Penalty Interest Fees TotalYIN ted
. Dec-l'l No (DLO) $ 881.60 .~ 88. 16 $ 4.22 $ 973.98$ -
8/2001 - 7/2004 Y $ '185,356.73 $ 27,806.47 $ 135,982. J5 $ 24,505.71 .~ 373,651.06Audit# A200005030 $ -Assessment $ -
$ -$ -$ -$ -$ -$ -$ -$ -.~ -$ -$ -
Totals $ 186,238.33 $ - $ 27,894.63 $ 135,986.37 $ 24,505.71 $ 374,625.04
Returned Items
Period/sWarrant
ActualEstima
Penalty Interest Fees TotalYIN ted
$ -$ -$ -$ -$ -- ~_ .. -. ,. _.. -_ .. _._.__ ...... .- .._. ... ._.-- - .- . "'" - ,.- ... -----. _. ---.-- ------ ------- --- ''$'--'- ..._---------:;- .. - ---- --- ._- .
$ - --I$ -...... __...... _ .M··' .'. ____ •• ... 0 •••••••• M'•• ... - . .. .. ."... '$ --.-
Totals $ - $ - $ - $ . $ . $ -
ActualEstima
Penalty Interest Fees Total·ted
Grand Totals $ 186,757.89 $ • $ 27,946.59 $ 135,987.96 $ 24,505.71 $ 375,198.15Less Payments Date Amount
Date AmountDate AmountDate Amount
Total $ .'Net Amount Due $ 375,198.15 I
BP# BPN#562502 IPrepared By 1K Sexton
Name COLORCARS EXPERIENCED AUTOMOBILES INC
DBA COLORCARS
Address 2311 Tamiami Trail North
City, St, Zip Nokomis, Florida 34275-3474
Open Date 28-Jal1-94 /WorllSheefEffective Dntc I 05-Mar-12
Delinquencies CITEsti
Perioo/sWarrant
Actual"Duemate
. :Penalty Interest Fees TotalYIN : d
Due$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -,$ -$ -$ -$ -
..._- ... - .. -- .+ • -. - ". '-... _. -_ . . , - ....-- . _ .._M__ ..... ,,-
~ .. - .. . - ----_.-.. -...- '-$ _. ._.- . --- - ..-A • ___ ••__ • _______0 .0_
-$ -$ ---$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -
Totals. '. ,:;" ~.. : : '. $ .. .'##- $ $.,
$"
-, - - $ -
EXHIBITR
BilIs/NTAs
WarrantEsti
'Period/sYIN
Actual mate. Penalty Interest Fees Totald
Jan-09 Y $ 250.00 $ 25.00 $ 275.00$ -
$ -$ -$ -$ ..$ -$ -$ -$ -$ -$ -$ -
I $ -$ -
Totals $ - ## $ 250.00 $ - $ 25.00 $ 275.00
Returned Items
TotalFeesInterestPenaltyActualWarrant·
YINPeriod/s
Esti'mate'
d. ...... .1-:-:.==:=':1=::===0-:-+==..,--,.,...,.,..=_:-::_...:-_-,I... ':-_........;_-:":__-"t.. ....,....-.. --1------+------1-------'-1---- .. _... --_. __ ._---- -- ..$.__... _._.. _-----~_ ..--...._.. _.. _---_.__ ._-
$'
$$$$$$
Totals $'" .• ;' ## : '$ $ $
Actual
.Elltf, " .. ·m~te.· .,PenaltY:··::· i,.::·. ··~i~terest
d' .Fees Total
Grand'Totals ':$
Less Payments
• #,#. $
Date250.00 .$' ..
Amount$ 25.00 $ 275.00 .
Date AmountDate Amount
Dilte Amount
N·····t·"A···; ..t·.··D····:'···:· ....: ..e.. moun, :ue... ....," ".
Total $
$ 275.00 f
--- -~~--
_ .. _ .._ _ _.._._. __ ._ ._._ ,.-- -..- -. - _..__00--·_..·..··· . -.- -.--- -- '1
ELECTRONIC JUDGMENT L~EN CERTIFICATEFOR PURPOSES OF FILING A JUDGMENT LIEN. THE FOLLOWING INFORMATiON IS SUBMITTED IN ACCORDANCE WITH s, 55.203, F.S..
JUDGl\IIENT DESTOR (DEFENDANT) NAME(S) AS SHOWN ON JUDGMENT LIEN:
COLORCARS EXPERIENOED AUTOMOBILES JNC2311 TAMIAMI TRL N .NOKOMIS FL 34275--3474NOKOMIS FL. 342753474 .FEI#: iiiiiiiii DOS DOCUMENT#: N/A
J10000109543FJLED 8:00 AMFebruary 16,2010
.Secretary ofState
JUDGMENT CREDITOR (PLAINTIFF} NAME AS SHOWN ON JUDGMENT LIEN OR CURRENT OWNERor: JUOGMENT IFASSI~N5D:. .
STATE OF FLORIDA, DEPARTMENT OF ReVENUEOUT OF STATE/CENTRAL OOLL.ECTIONS UNIT5050 W TENNESSEE 5T .TALLAHASSEE FL323996586DOS DOOUMENT#: 593476698
.-N8M~ ANP.j\l?PB~~~. T.'2~~~~ ~9~N~~~~.~G~~.~T!~~~.:~~I~~ ~~~.~ ~~_:'~_BE MAILE~:'DOR GENERAL OOUNSEL'S OFFICE '---".- - ---.-.--- .... -- -.---- "'-'--- ---- ---- .. -----
----- ~.-.-'-"~'-'---~-'-'-"---~--''''--'''--'-'._.-.....,-._-.-----:---~-.- -----.- -.. :=l-"'-'-'-" ..~u;;.. . .- ._-- _.---.-.&.....-. -·_· ••_w. .__ _ .
AMOUNT Due ON MONEY JUDGMENT: 365,395.84APP~ICABLE INTEREST RATE: 0.00%NAME OF COURT: SARASOTAcASE NUMBER: 1000000112055
. DATE OF ENTRY:02/.20/09. . .WAS AWRIT OF EXECUTION DOOKETED ON THIS JUDGMENT LIEN WITH ANY SHERIFF PRIOR TO OCTOBER 1,20011
( ) YES (IF YES, A"CREDITOR AFFIDAVIT CERTIFICATION" FORM MUST BEATTAGHED TO THiS CERTIFICATE.)(X) NO. . . '-
UNDER PE1NAI.1Y OF PERJURY,.! hereby oertlfythllt: (1) The Judgment nbove deaorlbed has become final and there Is no etay oftheJlldgment or Its enforcement In effectj (2) All of tho infonnn~ion' eet forth above ie true,oorrect, cUlTont and completo; (3) IhlWIl not .preyiouslyfllod II Judgment Lien Certlflcllto rtlgllrdlng tho IIbove Judgment With the. Departmont of StatEl; and, (4) I have complied withallnppllcllblelawsln submitting 1hlll Eleotronlo JUdgment Lion CortlflclIte forfill'na. .
Eleotronic Si,gnalure of Credllor or Authorized Repres.entatlve: DOR GENERAL COUNSEL'S OFFICE
'.
iI
I
I
----_.- ... _.__.. -_.~ ....-..- ...._......-.__.-.__..__ .... .. - _ _-- - - ..,-- -"'-" - _- ..-" _..-.- ' _ -.- .
STATE OF FLORIDADEPARTMENT OF REVENUE
WARRANT
RECBRFlV IN DFFIEI~L RECDRBBIN8!RUHE~'r #2OO9020JJ9 llii~~
2009 FEB 20 08;41 AM .KAREN E. RUSHING
CLERK OF THE CIRCUIT COURTSARASOTA COUNTY,FLORIDA.
FMILLER ReCeip.t#1136259.
COLORCARS EXPERIENCED AUTOMOBILES INC2311 TAMIAMI TR.L NNOKOMIS FL 34275·3474
Warrant Number: 1000000112055Contract Object :Re; Warrant issued under Chapter
. 212, Florida Statutes
THE STATE OF FLORIDA . i~~{I'OO~I~I~fl~D ''. TO ALL'AND SINGULAR, THE CLERKS OF TriE 'CIRCUIT cO[JRfs AND'- 1.
ALL AND SINGULAR, THE SHE:RIFFS OF THE STATE OF FLORIDAWARRANT FOR COLLECTION OF DELINQUENT SALES AND USE TAX.
The taxpayer named above in the County of Sarasota, is indebted to·the FlorIda Department ofRevenue, State of Flonda, In the following am~unts:
-- .
Tax
Penalty
Interest
Total
Filing fee
$186,376.64
. $27,806.47
$106,309.04
$3191492.05
$20.00
- -- ...- ..----..- -"-' --- --- .. -Grandtotal-·-··.. ·-· .--" ------·---· ..-------·-~3'l9,512.05 ... -.--.---- ..._.. __._. . ._._...__ .. __
For returns due on or before December 31,1999, interest is due at the rate of 12% per annum. For- .-.--·-retums -due ·on -oro-after-January -1,.-2000,...a--fioating rate of InteresLap'pJLes in <tccordance with ~~==c~tjo:.:..:.n _
213.235, Florida Statutes. . I---i--
WITNESS my hand and official seal In this City of Sarasota, Sarasota County, Florida, this 19th day of~M~~. .
/AUTHORIZED AGENT •
Lisa Echeverri, Executive Director .Department of Revenue, state of Florida
IENNE'm L· SEttOR.ThIs Instrument Prepared by:REVENUE ADMINISTRATOR II
,~4.0;-~~
PLEASE BILL TO:SARASOTA SERVICE CENTER1991 MAIN 8T STE240SARASOTA FL 34236-5940941-361-6001
_... ., _ _ •••~ .w • w • • • - ••
p :>::>:
PROM
Ir
Ir
. i
DR-78R. 10/10
Tax: Corporate Income TaxBusiness Partner #: 562502Contract Object # : 503113FEINWarrant # : 1000000256361
.Re: Warrant issued under Chapter220,221, Elorida·Statutes
\ "
$0,00
$250,00
$0,00
$250,00 .
$25,00
WARRANT
Lisa Vickers, Executive DirectorDepartment of Revenu~1 State of Florida
This i~s;rumenl prepared by: . ~~.
. . . A"h"I~' AiJ~Q
Florida Department of Revenue
Please bill to:SARASOTA SERVICE CENTER1991 MAIN ST STE 240SARASOTA FL 34236-5940941·361·6001
TAX
PENALTY
INT!;REST
TOTAL
FEECS)
.-.~
~~
.'·O~·
. (j
COLORCARS EXPERIENCED AUTOMOBI~NC2307 TAMIAMI TRL NNOKOMIS FL 34275-3474
THE STATE OF FLOR1D~TO ALL ANP 'SINGULAR, THE CLERKS OF THE CIRCUIT COURTS ANDALL AND SINGULAR, THE SHERIFFS OF THE STATE OF FLORIDAWARRANT FOR COLLECTION OF DELINQUENT CORPORATE INCOME TAX.The taxpayer named above in the County of Sarasota, is Indebted to the Department of Revenue, State of
'Florida, in the following amounts:
WITNESS my hand and offlClB1seal~ih-thls-clty-of-sarasota,·-sarasota-GGUFlty·I-F-lor.ida,.thls.9!b_dsy_oLMarch, I'2012,' . '------11
I'. !
I
ZTDJ
"DEPJlRiMENTOF nWUNU£
.o__. . •
For returns due on or before December 31, 1999, interesl is due at the rate of 12% per allnum, For returns--" ---- --.- ... - -- -. due on or after January 1, 2000, a f108f1ng rateo1-lnterest-applies-in-accordaflee-witt:1-sectiOR-2.t3..235,,---'---~---~
. _····_·Florida Statutes:--:-:---·~-··_·_··-····-··--·-·-·--------·· .'. . . . .. • •••w_·_._. •••.:. ._._._ •__•
... _.. __ . -- ..-----GRAND-TO'TAL.. __ .__ __.__ _.. _ _ $275,00
~- ...... . M_._M__ ...__ - .. -._..----_. -- ._-----_..__.... -. ---------------_.-
"O!:P!lR'lMEN!OFRMNUEUIlll V\d(era
5xcculJ\lv Director
General Tax AdministrationChild Support EnforcementProperty Tax AdministrationAdministrative ServicesInformatIon Setvlcell
NOTICE OF ,CONFERENCE ON REVOCATION OF CERTIFICATE OF REGISTRATIONFOR FAILURE TO COMPLY WITH CHAPTER 212, FLORJJ;>A STATUTES
Re: Colorcars Expel'ien~ed Automobiles Incr 68-8011915593-0
You are reClu~sted to appear at the Florida Departmont of Revenue, 1991 Main Street, Suite 240, sarasota.Florida 3423G on 18 January 2012 at 10:00 am for an Informal conference. .
This Oonferenoe is being held pursuant to Section 212.18(3)(d), Florida Statutes. The Department has Inltiatadthis process to revoke your dealer's certlficate of registratlcn·due to the vi01ations of law listed below. Operation of yourbusiness without a dealer's certificate of res1stration is prohibited by law. At this conference, you will be provided a finalopporturilty to make full payment of all delinquent tax, penalty, or interest or bring evidence to our attenllon thatdemonstrates Why the Department shoUld not revoke your certlfioate.
The basis for the findlng of non-oompJlanc~ with Florida law is ss follows:
1, «3D perlcds of Sales and Use Ta~ non-oompJianC8j outstandIng liability $432,474.52
• Outstanding bills for (889 enclosure)
2, Numerous conlacts and notices Issued for non-compliance.
3. Failure to successfully resolve this matter from contacts to notices.
- -- -- - -----6e-advlsed,if you-faIHo.-atlend·the-jnfonnaf"CDnfe~ence,:bring -s.vidence.6stabllsbIJJgJh.al. t8K i.s_ D.9.1;gl!!3,_~.§ln.!§!L ._.into a compliance agreement With the Department resolvmg thiS matter, the .Department will take immediate aallon to ..-...----...-~---revoke your sales and use tax deale~p registration certlflcate whioh will prevent you from doing business in this State, If
_.__yoU declg~_!Q_s_en(? rB8resentatlv6 to act on your behalf, a Power of Attorney authorization is required (sea attachedfOJiTl). - ··--.----.-------------I--J
We reoommend that all un-flied returns be prepared and delivered prior to your scheduled hearing. If you needan appointment to deliver returns and/or If you need further Information, please contact,
Kenneth Sexton, Revenue Atimlnlstrator1991 M9-ln Street, SuIte 240, SarasotB, FL 34236
941-361-6298
Signed,
~h~ServIce Center Manager
. . Notice Under the Americans with Disablllties AqtAny-person requiring llPl'Cial aceommodallon~ to partlolpate In the Infonnal conferenco is a8ked to adville the Departmentallsast48hours before such conferencw by contacting the person named above. Persons with hsaring or speoch Impairmfll'llS may contllct theDepartment u~lng the FlorIda Relay SelVioo, 1-800-955-8770 (Voice) or 1·800·955-08771 (TDO). -
Ret:. 'Cwc~ &Pci j:1., -r..f-!(
www.myflorlcla.oomfdorTdllahams, Florida 3239~0100
EXHIBITD
._-----------~--------- ...--
I
II
IFAQs
Page 1 ofl
_._.-. __... _.. _-- .• - -- - --~----. - __• ·-. __ 0-
3/5/2012
Track & Confirm
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rennu 01 UgePlh!!!!ly PnUeyGov't RelY!e.sCualomer SerYlce
Search ·Results.Label/Receipt Number: 7002 2030 0000 99644156Status: Notice Left
We attempted to deliver your Item at 1:01 pm on November 21,2011 InNOKOMIS, FL 34275 and a notice was lelt. No further Information Isavailable for this Item. Aproof of delivery record may be availablethrough your local Post Office for a fee.
Addftlonallnformallon for this Item Is stored In flies offline.
Track &Confirm
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USPS - Track & Confirm
CopyrighlCilZ010 USPS. All Rights Reserved. No FEAR Acl EeO Dala FOrA
l.+f.,o,·/Ihov,...rtfM-r, 1 ~mi .mms.comIPTSInternetWeb/lnterLabelInquiry,do
-'------------
'- --- -'-. --- ------------.--_._._--. -_._-- . - --"-'- ._._--.- - --_ .... - --._.-._._._----_.- ..._-- .
-,---- ---------_._--_._--_.
"
ColorCars... experienced automobiles, Inc.2311 Tamiami Trail North
Nokomis, FL 34275 .941...966..0667
VIA Federal Express
January 11,2012
:Mr. Steven KaminskiService Center ManagerFlorida Department ofR~venue1991 Main StreetSarasota, FL 34236
Dear Mr. Kaminski:
I am in receipt ofyour request that ColorCars Exp~rienced Automobiles, Inc. appear at aninfo11!laI conference on January 18,2012 pursuant to Section 212.l8(3)(d). Irespectfullyrequest that you reschedule this'conference to a mutually convenient date in the near .future. I am presently out ofthe country and my presence is required out ofthe country.through the end of this month. In particularJ on the date you selected for this conferenoe,
._"' .. __.__ .Jl!nl1.~j~ .~Ol~,L~ !~9.u!!eA!0_.!?e.~t ~ judicial proceeding in Halifax, Nova ScotiaCanada. -. - ." "'-'-'---' .-...... -- ....-.---..-.... -. - ---.-- - .-- --- - _ ... -._-- - -----. -- -- -- -_.- --- - -
-----I.am.scheduledto .bein.FJorida.from.February 4, 2012 until F~b!W!JY.J.:!:,~Ol2 and a,g!!..ID=- I._-i
tentatively from March 3,2012 to March 13, 2012, I wo~ld prefer a date ofMarch 7,2012 ifpossible but February 8,2012 could be accommodated possibly.
The corporation plans to be represented by counsel at this meeting an'd possibly have aoourt reporter present. I am in the process ofinterviewing counsel at this time, but thiswill definitely be finalized by the March date.
In the interest ofmaking some progress towards thatmeeting I would like to draw several~ssues to your. attention. '. (
First, the e~closure w~c~ accompanied your letter speaks to instances where tax returnsmay have not been filed and where accompanying taxes have been ·estimated. I wish tonote for the record that rill tax returns have been filed and flO estimated taxes exist
Second, it appears that where returns have been filed and there are claims for tax due thiswas during the time that the Department had frozen the oorporate bank accounts. Prior tothis point, with only one exception in 15 years ,was there such an occurrence and that
.--0----- -------------------------
was 8/04 where the attempt was made to pay the tax, the tax was believed to have beenpaid and in the final analysis ihere was an error as to the newly entered bank accountinformation.
It would appear then that all of the other tax due, became due after DOR froze theaccounts. This amOlUlts to approximately $28,355. Recently the Department withdrewsomewhere in the area of$64;000 from the corporation's bank accounts. We have notreceived an accounting of these fonds to this date, and rbelieve an accounting is in orderprior to our infonnal conference. J would hope that these funds would be applied towardsthis tax due in the final analysis. Given that such a situation had never occurred untilbank accounts were frozen, it occurred, but for the freezing ofthe accounts. Tax had beenpaid against this certificate on amonthly basis since 1994.
Third~ penalties that have accrued other than $27,806 on the 07/04 reassessment havelargely been the result ofC?lerioal error or timing error in filing a return after the electronicdeadline, many times within an hour or two of same.
Your letter states 30 periods ofnon~compliance for which I take issue. I would like topoint Qut that during those periods compliance was substantial. Aside from the time goingforward where ColorCars Experienced Automobiles was decimated by the actions oitheDepartment ofRevenl:le in freezing bank accounts, such "non-compliance" did not exist.
Fourth, your letter clai~s a failure on the part of ColorCars Experienced Automobiles,incto sucoessfully resolve this matter. This certainly was not from a lack oftrying.
I will have for your inspection the sworn testimony transoript of:MJ.chael David where he- -------. ---- -- acknoWledges-my:request-thatthiS matter-be referred-tG-uppet:-Department.authority __ . .__. .__._. _
pursuant to Florida Statute 213.21 to demonstrate the inability ofthe taxpayer to pay theliability and to reach a compromise.
------..::...- --------:-----------------1This very procedure was what had been suggeste4 to me by Charles Wallace oftheDepartment's Technical Assistance and Dispute Resolution area. In ~ddition it was I whorequested the :first meeting with Michael David where I put forth settlement proposals.
I appreciate the opportunity to bring these issues to your attention in the hopes that aresolution ofthis issue satisfactory to all can be reached upon our meeting in oonference.
./"'.-.....-...-_._---_.._-.FROM
~,r~OEPARTMI!NT
. OF REVENUE
Exeeotlvo DllKlor/J$o Wcke", .
Sarasota Service Center1991 Main Street, Suite 240Sarasota, FL 34236-5940
30 January 2012
-._- -.__ -0-_------- '_0
John T. Early, III esq.PresidentColorCars Experienced Automobiles, Inc.2311 Tamiami Trail NorthNokomis, FL 34275-3474
Re: Notice ofRevocation Conference dated 11/18/2011Taxpayer's Request for Postponement ofRevocation Conference Scheduled on Jan 18, 2012
Mr. Early:
We have received your letter dated January 11,.2012, requesting a delay of theRevocation Conference scheduled on January 18, 2012. You state in your letter that youare required to be. at ajudicial proceeding in Halifax, Nova Scotia, Canada, and request
- ------...-.--.----.thaUhe teferenqe_dJ3:~Y9~_aJ!.QJU~9.~~~~p._':le be postponed to March 07, 2012..- -- - _ .._-_.- .- _. -'-----:-- -_. _. --------- --- - ---
This letter is to let you know that after considering the reason for your request, we have---"decided-to ·reschedulethe Revocation.Conference to March_0.1,.2012_8:S.Y-ou..p.referred.
Please come to the Department's Sarasota office at 10:00 a.m. on March 07, 2012-;fo"';'r-;:th~i;-s-------1conference. .
Please be advised that there will be no more change of the said Revocation Conferenceschedule. Any further delay will result in an immediate issuance of officialAdministrative Complaint against ColorCars Experienced Automobiles, Inc.
If you have any question, please,call me at (941)-36l M 6298.
Sincerely,
Ken SextonRevenue Administrator II
Child Support En/orcemenl - Ann Comn, Dlreclor • General Tax AdmlnlslraUon - JIm Evers. DIrector. Proper!}' Tax Overelghl- J8m8~ McAdam~. Direc/or' Inrormlilion Services - Tony Paws//, Dj~lor
941·361-6001 YNNI.myflorlda,com/dor FAX: 941·361-8132
STATE OF FLORIDADIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF REVENUE,
Petitioner,
vs.
COLORCARS EXPERIENCEDAUTOMOBILES, INC., N/K/AEXPERIENCED VEHICLES, INC.,
Respondent.
Case No. 12-1956
RECOMMENDED ORDER
Pursuant to notice, a final hearing was held on
September 20, 2012, in Sarasota, Florida, before Administrative
Law Judge Elizabeth W. McArthur of the Division of Administrative
Hearings.
APPEARANCES
For Petitioner: John Mika, EsquireOffice of the Attorney GeneralThe Capitol, Plaza Level 01Tallahassee, Florida 32399-1050
For Respondent: John T. Early, III, esq.l/Colorcars Experienced Auto; Inc.2311 Tamiami TrailNokomis, Florida 34275-3474
Robert Brian Resnick, Esquire2/
Post Office Box 1872Boca Raton, Florida 33429-1872
EXHIBIT 2
STATEMENT OF THE ISSUE
The issue in this case is whether Respondent's certificate
of registration (Certificate) should be revoked for alleged
failures to comply with requirements of chapter 212, Florida
Statutes.
PRELIMINARY STATEMENT
On April 24, 2012, the Department of Revenue (Department or
Petitioner) issued an administrative complaint (Complaint),
alleging that Colorcars Experienced Automobiles, Inc., now known
as Experienced Vehicles Inc. (Colorcars or Respondent), violated
certain provisions of chapter 212, including the requirement to
pay taxes when due. Based on these alleged violations, the
Department contended that Colorcars' Certificate should be
revoked. Colorcars timely filed a Petition for Formal
Administrative Hearing (Petition) to contest the allegations, and
the matter was forwarded to the Division of Administrative
Hearings (DOAH) for assignment of an Administrative Law Judge to
conduct the hearing requested by Respondent.
The case was initially assigned to Administrative Law Judge
J.D. Parrish, who issued an Initial Order. The parties filed a
joint response to the Initial Order, in which they indicated that
the final hearing should be held in Sarasota, Florida, and that
they would be available for bear{~i bi ~~il~ August 2012.
2
On August 2, 2012, a Notice of Hearing and an Order of
Pre-Hearing Instructions were issued setting the final hearing
for September 20, 2012, and establishing pre-hearing requirements
for the orderly and timely preparation of the case in advance of
the final hearing.
In accordance with the pre-hearing requirements, on
September 11, 2012, the Department filed its unilateral
pre-hearing statement, listing its proposed exhibits and
witnesses and setting forth its position; the Department
confirmed that copies of its proposed exhibits were timely
provided to Respondent. No unilateral pre-hearing statement was
submitted by Respondent, nor did Respondent file lists disclosing
its proposed exhibits or witnesses.
Also on September 11, 2012, the Department filed a motion to
allow a Tallahassee-based Department employee to testify from
Tallahassee. By Amended Notice of Hearing, arrangements were
made for the Department employee to testify at DOAH in
Tallahassee, linked by video teleconference with the hearing site
in Sarasota.
On September 17, 2012, the case was transferred to the
undersigned.
On September 18, 2012, Robert Resnick filed a Notice of
Appearance for Respondent~ and -a motion to continue the final
hearing. The motion asserted that Mr. Resnick had just been
3
retained to represent Colorcars, needed additional time to
prepare, and wanted to explore settlement with the Department.
The motion recited that the Department did not oppose a
continuance. Nonetheless, by Order dated September 19, 2012, the
motion was denied, because it failed to demonstrate an emergency,
per Florida Administrative Code Rule 28-106.210.
On September 19, 2012, Mr. Resnick filed an amended motion
to continue the final hearing and to reconsider the order denying
a continuance. This motion reiterated the grounds for requesting
a continuance from the previous day's motion. In addition, the
motion asserted that Mr. Resnick could not be in Sarasota the
next morning, because he was obligated to appear in court in
Broward County in connection with a capital felony case. The
amended motion was denied in a Second Order Denying Continuance
of Final Hearing issued on September 19, 2012.
The final hearing, thus, went forward as scheduled, with
Respondent represented by John T. Early, III, who was designated
as Colorcars' representative in its Petition. The Department
presented the testimony of Kenneth Sexton and Mr. Early and
offered Petitioner's Exhibits 1 through 9, which were admitted in
evidence. Respondent presented the testimony of Mr. Early and
Charles Wallace, who testified from Tallahassee by video
-- .. - -- - --- ._... -
teleconference. Respondent-6ffe-red no exhibits in evidence.
4
.._--_.__.----~_.~ ----------------------- -------------~-------------- -------------------------- -- ------------------
Official recognition was taken of DOAH's file in Colorcars
Experienced Automobiles, Inc. v. Department of Revenue, DOAH Case
No. 08-5442, which was dismissed without an evidentiary hearing
by Agreed Dismissal With Prejudice, signed by both parties and
filed on February 13, 2009. In addition, official recognition
was taken of a tax warrant recorded in the official records of
Sarasota County, Florida, on February 20, 2009.
The one-volume Transcript of the final hearing was filed on
October 5, 2012. By agreement, the parties were permitted to
file their proposed recommended orders (PROs) by November 5,
2012. Petitioner timely filed its PRO. Respondent filed its PRO
one day late, on November 6, 2012, but Petitioner did not file a
motion to strike, or otherwise object to, the late PRO. Both
parties' PROs have been considered in the preparation of this
Recommended Order.
FINDINGS OF FACT
1. The Department is the state agency charged with
administering and enforcing Florida's revenue laws, including the
laws related to the imposition and collection of sales and use
taxes pursuant to chapter 212.
2. Colorcars is a Florida corporation engaged in the retail
auto sales business in Nokomis, Florida. Colorcars is a "dealer"
within the-meaning of section 212.02(6)~
5
.-----_.. _~---., .._. __._--.~----~~-._~------------
3. In order to engage in business as a "dealer," Colorcars
was first required to apply for and obtain a Certificate from the
Department. Colorcars first obtained its Certificate in 1994.
4. As a "dealer" holding a Certificate, Colorcars is
obligated to comply with the sales tax laws, including collecting
sales tax from its auto customers, filing returns, and remitting
the collected sales tax to the Department.
5. In a prior DOAH proceeding, Colorcars initially
requested an administrative hearing to contest a Notice of
Proposed Assessment (NOPA) issued in 2005, by which the
Department asserted that Colorcars' sales tax payments were
deficient in the amount of $185,376.54, based on the results of
an audit of Respondent's business for the period from August 1,
2001, through July 31, 2004. With additional penalties and
interest claimed by the Department, the total proposed assessment
as of June 14, 2005, according to the NOPA, was $245,057.07.
Respondent pursued the protest avenues within the Department, but
was unsuccessful, and the NOPA was confirmed in the Department's
notice of reconsideration dated August 19, 2008. Colorcars was
given notice of its rights, and Mr. Early filed a Petition for a
Chapter 120 Hearing on Colorcars' behalf. The case was forwarded
to DOAH and assigned DOAH Case No. 08-5442.
6. DOAH Case No. 08-5442 was closed without an evidentiary
hearing. The parties filed an Agreed Dismissal With Prejudice on
6
February 13, 2009 (2009 Agreed Dismissal), whereby Colorcars
dismissed its petition with prejudice, thereby withdrawing its
request for an administrative hearing to contest the NOPA.
Mr. Early signed the 2009 Agreed Dismissal as Colorcars'
qualified representative in that DOAH proceeding,31 on
February 13, 2009. The 2009 Agreed Dismissal included the
following provisions:
4. Colorcars filed this proceeding tocontest the sales tax assessment (the"Assessment") arising from audit number200005030 for the period August 1, 2001through July 31, 2004, which was finalupon issuance of the Department'sAugust 19, 2008 notice ofreconsideration.
5. This proceeding to contest theAssessment is hereby dismissed withprejudice. The Assessment remainsfinal, valid, and effective in itsentirety.
The sales tax assessment initially contested by Colorcars in DOAH
Case No. 08-5442 will be referred to hereafter as the Final 2008
Assessment.
7. On February 19, 2009, the Department issued a tax
warrant in the amount of $319,512.05 to secure the unpaid Final
2008 Assessment. The tax warrant amount reflected the unpaid tax
liability, plus penalties, filing fee, and additional interest
that had accrued as of that date. The tax warrant was recorded
in the official records of Sarasota County on February 20, 2009.
7
8. No evidence was presented to demonstrate that the tax
warrant recorded in Sarasota County was ever withdrawn, amended,
invalidated, or satisfied. No evidence was presented to
demonstrate that the validity of the tax warrant was ever
challenged in any tribunal (except to the extent that Colorcars
seeks to question its validity in this proceeding) .
9. On February 16, 2010, the Department filed a judgment
lien against Colorcars with the Florida Secretary of State to
secure the same unpaid Final 2008 Assessment, based on the tax
warrant recorded in Sarasota County on February 20, 2009.
According to the judgment lien certificate in evidence, as of
February 16, 2010, Colorcars' tax liability had mounted to
$365,395.84, which was the amount of the filed judgment lien.
10. No evidence was presented to demonstrate that the
judgment lien recorded with the Secretary of State was ever
withdrawn, amended, invalidated, or satisfied. No evidence was
presented to demonstrate that the validity of the judgment lien
was ever challenged in any tribunal.
11. Mr. Early admitted that as of September 20, 2012,
Colorcars has not made any voluntary payments to reduce the sales
tax liability established by the Final 2008 Assessment.
12. In April 2009, the Department froze funds in a
Colorcars bank account at Liberty Savings Bank. Over a two-year
period, Colorcars fought the Department's effort to levy the
8
funds in the Liberty Savings Bank account. Following litigation,
the validity of the Department's action was ultimately confirmed,
and the Department was allowed to levy approximately $64,000.00 4/
to apply to Colorcars' tax liabilities. However, according to
the Department's witness, the funds levied were applied to offset
other Colorcars tax liabilities, and thus, were not applied to
reduce Colorcars' tax liability stemming from the Final 2008
Assessment. Colorcars took issue with this testimony, claiming
that the levied bank funds should have been applied to reduce the
Final 2008 Assessment.
13. Neither party presented evidence sufficient to resolve
this dispute, but it is unnecessary to decide whether the
Department has properly applied and accounted for the levied
funds for purposes of this proceeding, because the exact amount
of Colorcars' remaining tax debt need not be determined. The
primary basis for seeking revocation of Colorcars' Certificate is
Colorcars' failure to comply with the requirements of chapter 212
by failing to pay the mounting tax liability that Colorcars
admitted it owed in February 2009, when it voluntarily dismissed
with prejudice its challenge to the Final 2008 Assessment.
Colorcars conceded that it has not voluntarily undertaken to pay
one dime of the substantial sales tax deficiency attributable to
a three-year period of business operations that began more than a
decade ago. Colorcars presented no explanation for its failure
9
to pay this admitted liability, which grows daily with accruing
interest; Colorcars only asserted that possibly the Department
succeeded in wresting away Colorcars' funds to force a partial
payment, which Colorcars fought. Even if the evidence
established that the levied bank funds should be applied to
reduce the total amounts due from the Final 2008 Assessment,
Colorcars would still owe more than $300,000.00 from the Final
2008 Assessment, which would have to be paid for Colorcars to
come into compliance with its obligations under chapter 212.
14. As a related, but independent basis for seeking
revocation, the Complaint alleged that the Department has issued
one or more tax warrants and/or judgment lien certificates, filed
in the public records, for collection of Colorcars' sales tax
liability resulting from the Final 2008 Assessment. The
Department presented proof that both a tax warrant and a judgment
lien were issued against Colorcars and duly recorded in the
public records.
15. Colorcars acknowledged that a tax warrant was filed,
but argued that the tax warrant should be deemed void or invalid
because it was issued less than 30 days after the 2009 Agreed
Dismissal, which was before the time to appeal had expired.
16. Colorcars did not dispute the Department's evidence of
a duly-recorded judgment lien. Colorcars did not present any
10
evidence or argument questioning the validity of the judgment
lien, which was not recorded until February 16, 2010.
17. The Complaint also charged Colorcars with failing to
pay sales tax when due after collecting the sales tax from
customers, despite filing sales tax returns for December 2011 and
January 2012 that established Colorcars' sales tax liability.
The total amount of sales tax collected by Colorcars from its
customers and not paid over to the Department in those two months
was $1,401.16. The Complaint alleged that as of March 5, 2012,
an additional $145.93 in penalties and interest was owed in
connection with this sales tax liability.
18. Colorcars admitted that it collected sales tax from
customers that it has not paid over to the Department for those
two months. Colorcars did not dispute the amount of collected
sales tax it failed to pay, or the amount of penalties and
interest, as alleged in the Complaint.
19. Colorcars claimed that its failure to pay sales tax
collected from its customers should be excused because the
Department made it impossible for Colorcars to pay. According to
Colorcars, the bank account that was frozen by the Department was
the one set up to make electronic sales tax payments to the
Department. Thus, while Colorcars was required to, and did,
timely file its sales tax returns for December 2011 and
January 2012, Colorcars contends that it was unable to make the
11
tax payments admittedly due because it could not do so
electronically.
20. Contrary to Colorcars' claim, the evidence established
that Colorcars could have made arrangements to pay the sales tax
liability some other way besides an electronic payment from the
frozen account that had been set up to make electronic payments.
The Department's witness testified credibly and without
contradiction that Colorcars could have sent payment the
old-fashioned way, by mail or delivery to the Department.
Colorcars could have made the payments by check from another
account, or by tendering cash, cashiers' check, or money order,
and such payment would have been accepted by the Department.
21. Mr. Early admitted that the sales taxes collected from
customers that should have been paid to the Department were being
held "at the office of corporations attorney." Mr. Early
admitted that Colorcars never tried to make these tax payments
some way other than electronically from the frozen account, such
as by offering to write a check to the Department or to pay in
cash. Mr. Early admitted that as of the date of the hearing, the
sales tax collected from customers that should have been paid
over to the Department at the time the December 2011 and
January 2012 tax returns were filed, remains unpaid. Mr. Early
gave no legitimate explanation for holding these funds, instead
of paying them over to the Department. 51
12
22. As a final item, the Complaint charges Colorcars with
failing to pay a penalty and a fee, totaling $275.00, assessed
because Colorcars allegedly filed its 2009 corporate income tax
return late. Colorcars contends that it believes the return was
timely filed, but was just received late by the Department.
23. The Department failed to present evidence clearly
substantiating its allegation of a late-filed 2009 corporate
income tax return. 6/ Colorcars offered no evidence to prove that
it timely filed its 2009 corporate income tax return.
24. On November 18, 2011, the Department initiated the
process for revocation of Colorcars' Certificate by issuing a
notice of revocation conference, requesting Colorcars to appear
at an informal conference. The notice informed Colorcars that
revocation was being considered because of Colorcars' failure to
comply with chapter 212, resulting in a total sales tax liability
claimed by the Department of $432,474.52. Colorcars was informed
that, at the informal conference, Colorcars would have the
opportunity to make payment or present evidence to demonstrate
why the Department should not revoke Colorcars' Certificate.
The notice advised that the informal conference would be held on
January 18, 2012. A handwritten note on the copy of the notice
in evidence indicates that it was received on December 14, 2011.
25. Four weeks after the apparent receipt of the notice, on
January 11, 2012, Mr. Early wrote a letter, sent by overnight
13
courier to the Department, requesting that the informal
conference be rescheduled because Mr. Early was out of the
country. Mr. Early identified two ten-day periods, one in
February and one in March, when he would be in Florida and could
attend an informal conference; Mr. Early expressed a preference
for the latter month, and in particular, for March 7, 2012.
Mr. Early indicated that he intended to be represented by counsel
at the meeting and was interviewing candidates.
26. The Department agreed to reschedule the informal
conference and accommodated Mr. Early by resetting the conference
for the date that Mr. Early said he preferred. The Department's
January 30, 2012, letter rescheduling the conference warned that
"there will be no more change" to the rescheduled revocation
conference.
27. Mr. Early attended the March 7, 2012, revocation
conference, without counsel. At the final hearing, Mr. Early
indicated that despite the warning that there would be no more
changes to the rescheduled conference date that Mr. Early had
requested, Mr. Early, nonetheless, asked the Department to delay
the conference again because he had retained counsel who was not
available on March 7, 2012. The Department apparently adhered to
its warning and did not agree to another delay of the conference.
28._. " - "----' .. _. --,
At the informal conference, the Department and
Colorcars apparently came close to reaching a compliance
14
agreement, a draft of which is in evidence. According to
Mr. Early, he refused to sign the draft agreement offered by the
Department because he would not agree to personally guarantee the
payment schedule agreed to by Colorcars to retire its sales tax
liability. Mr. Early suggested that this was a surprise clause
added at the last minute. In contrast, the Department's witness
testified that it is a standard provision.
29. Mr. Early seemed to suggest that if the Department
doubted whether Colorcars could meet the schedule of payments to
satisfy its sales tax liability, then the Department should have
compromised the debt and agreed to accept less from Colorcars.
Collectability is one factor considered by the Department in
determining whether to exercise its discretion to compromise a
sales tax liability, but it is only one factor.
30. It is unclear whether Mr. Early presented evidence at
the informal conference regarding Colorcars' financial status or
regarding other factors bearing on the Department's consideration
of a possible compromise. It is also unclear whether Mr. Early
presented evidence related to Colorcars' sales tax liabilities
claimed by the Department in the notice of revocation conference.
Other than the draft compliance agreement itself, which is in
evidence as the proposed agreement that the Department offered
._- ~- - ---- _._-.--- -- _.but Mr. Early refused to sign, no credible evidence was presented
to establish what was said or what evidence was presented at the
15
informal conference. However, following the informal conference,
the total tax liability claimed by the Department was reduced
from the $432,474.52 claimed in the November 18, 2011, revocation
conference notice to $375,473.15, the total amount for which
repayment was sought in the draft compliance agreement and the
total amount set forth in the Complaint. The Complaint was filed
after Mr. Early's rejection of the draft compliance agreement
offered by the Department.
Claimed Deprivation of Right to Counsel/Qualified Representative
31. In its PRO, Respondent asserted as a "procedural issue"
that it was deprived of its right to be represented by counselor
qualified representative at the final hearing. Thus, additional
Findings of Fact are made to specifically address this claim.
32. The Complaint was mailed to Respondent on April 25,
2012. In addition to setting forth the charges, the Complaint
informed Respondent of its right to an administrative hearing and
its right to be represented by counselor other qualified
representative. Respondent was given 21 days in which to request
an administrative hearing, and Respondent was informed that if a
hearing was requested, Respondent would be given at least
14 days' notice before the hearing would be held. Thus,
Respondent was on notice that it needed to act quickly to
exercise its right to be represented by counselor qualified
16
representative, because the final hearing could be held in very
short order.
33. Respondent's timely-filed Petition set forth
Respondent's choice of representative as follows: "John T.
Early, III, esq. shall be the representative of the
Petitioner [sic: Respondent]."
34. Mr. Early clarified at the hearing that he uses the
title, "esq.," because he is a lawyer in the state of
Connecticut, but he is not admitted to practice in the state of
Florida.
35. The Initial Order entered by DOAH on June 1, 2012,
referred the parties to the governing procedural statutes and
rules and contained a summary of procedures. The summary
provided a second notification to Colorcars that it may appear
personally or be represented by counselor other qualified
representative. The summary also gave explicit notice that under
the governing rules, any requests for continuance of the final
hearing must demonstrate good cause and must be filed at least
five days before the hearing date, absent extreme emergency.
36. On June 7, 2012, the parties filed a joint response
indicating that they were available for a final hearing in early
August 2012.
37. On August 2, 2012, a Notice of Hearing was issued,
scheduling the final hearing for September 20, 2012. A separate
17
Order of Pre-Hearing Instructions established various deadlines
for the orderly and timely preparation for the final hearing.
These deadlines included the following: by September 5, 2012,
the parties were required to meet to discuss settlement
possibilities, exchange witness lists disclosing all potential
witnesses and designating experts as such, exchange all proposed
exhibits, and prepare a joint pre-hearing stipulation; by
September 10, 2012, the parties were required to file their joint
pre-hearing stipulation; and alternatively, if no joint
pre-hearing stipulation could be reached, then by September 13,
2012, the parties were required to file separate unilateral
pre-hearing statements.
38. From May 30, 2012, when this case first arrived at
DOAH, through the close of the entire pre-hearing preparation
phase, during which settlement was to be explored, witness and
exhibit choices were to be made and disclosed, and pre-hearing
stipulations or pre-hearing statements were to be finalized and
filed, Mr. Early remained as Respondent's sole designated
representative pursuant to its Petition.
39. On September 18, 2012, two days before the final
hearing, Robert Resnick filed a Notice of Appearance on behalf of
Respondent, along with a motion for continuance. The motion
contended that Mr. Resnick had "just been retained" and needed
additional time to prepare for hearing and to pursue settlement
18
with the Department. The motion was denied, because it failed to
demonstrate an emergency as required by rule 28-106.210.
40. On September 19/ 2012/ less than 24 hours before the
hearing was supposed to begin, Mr. Resnick filed an amended
motion for continuance, disclosing for the first time that he was
scheduled to be in court in a criminal matter in Broward County
on September 20/ 2012/ and, thus, was unavailable for the final
hearing for which he had just been retained to represent
Respondent.
41. As detailed in the Second Order Denying Continuance,
the amended motion was found insufficient to demonstrate an
emergency. In particular, it was noted that Respondent's failure
to retain counsel until the last minute and Respondent's failure
to ensure that the counsel retained at the last minute was
actually available for the scheduled final hearing, did not
constitute emergencies.
42. At the outset of the final hearing, Mr. Early renewed
the request for a continuance, but offered nothing by way of
additional reasons or explanation that would justify the
last-minute nature of his request/ why Respondent did not attempt
to secure counsel sooner and why Respondent selected a lawyer at
the last minute who was not available to appear at the final
hearing. Instead, Mr. Early made light of the delay, at one
19
point characterizing himself as "president of the
procrastinators' club."
43. Mr. Early displayed a lack of candor in his effort to
delay the hearing by representing that counsel for the Department
and Mr. Resnick "had reached an agreement to continue between
themselves[.]" Counsel for the Department denied any such
agreement, stating that the Department's position was only that
it did not oppose Respondent's request for continuance, which was
not the same thing as agreeing to a joint motion to continue.
Mr. Early then admitted that he had only sent an email to counsel
for the Department requesting an agreement, but that counsel for
the Department apparently "didn't receive my e-mail last night
where I had to ask him that.
on it."
I don't mean to jump the gun
44. The undersigned finds that Colorcars had full rein to
exercise its right to be represented or advised by counselor
qualified representative throughout this administrative process.
Colorcars exercised its right by designating Mr. Early as its
representative in the Petition. Mr. Early had previously
represented Colorcars in a DOAH proceeding in which he requested
and attained "qualified representative" status. Mr. Early was
capable of serving as Respondent's representative in this
proceeding. Even so, Colorcars has retained the right to be
advised by counsel throughout these proceedings, and Colorcars
20
was allowed to have its counsel of record prepare and file
Colorcars' PRO, despite not having appeared at the final hearing.
45. The undersigned finds that Colorcars waived its right
to change the choice of representative it made in its Petition,
so as to be represented by late-appearing counsel at the final
hearing, by not attempting to exercise that right in a timely and
appropriate manner consistent with the governing procedural
rules. Colorcars was on notice of its representation rights for
months, just as it was on notice of the limitations on
continuances. Colorcars offered no reason why it could not have
timely retained an attorney who could be available on the
scheduled hearing day.
46. The totality of the circumstances, including the timing
of Colorcars' actions, suggests an inappropriate strategic
purpose of securing delay. That is particularly true since
Colorcars selected an attorney at the last minute who was not
available on the scheduled hearing date. Colorcars has
demonstrated a pattern of picking different counsel at the last
minute in order to attempt to trigger a delay, because the
counsel selected has a schedule conflict. Colorcars retained a
different lawyer before the March 7, 2012, informal revocation
conference, and then asked to delay that hearing because the
lawyer was not available that day. In telling fashion, Mr. Early
complained that the Department would not agree to a second
21
postponement of the informal revocation conference when "we had
requested--in a similar situation requested an extension of time
because counsel couldn't be there that day. Not Mr. Resnick, but
a different counsel."?/
47. Whether by strategy or by the strangest of
coincidences, Colorcars' penchant for last-minute attempts to
change its representatives to attorneys with schedule conflicts
cannot be countenanced as a way to evade procedural deadlines and
requirements imposed on all parties in the interest of the
orderly administration of justice in administrative proceedings.
CONCLUSIONS OF LAW
48. The Division of Administrative Hearings has
jurisdiction over the subject matter and parties to this
proceeding. §§ 120.569 and 120.57 (1), Fla. Stat. (2012).
49. Petitioner has the burden of proving by clear and
convincing evidence the allegations in the Complaint on which
Petitioner relies to seek revocation of Respondent's Certificate.
Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932,
935 (Fla. 1996). As stated by the Florida Supreme Court:
Clear and convincing evidence requires thatthe evidence must be found to be credible; thefacts to which the witnesses testify must bedistinctly remembered; the testimony must beprecise and explicit and the witnesses must belacking in confusion as to the facts in issue.The evidence must be of such weight that itproduces in the mind of the trier of fact afirm belief or conviction, without hesitancy,
22
as to the truth of the allegations sought tobe established.
In re Henson, 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz
v. Walker, 492 So. 2d 797, 800 (Fla. 4th DCA 1983); accord
Westinghouse Electric Corp., Inc. v. Shuler Bros., Inc., 590
So. 2d 986, 988 (Fla. 1st DCA 1991) ( "Although this standard of
proof may be met where the evidence is in conflict, . . . it
seems to preclude evidence that is ambiguous.").
50. In the Complaint, the Department invoked sections
212.18(3)(d) and 213.692, Florida Statutes (2011),81 as statutory
authority to revoke Colorcars' Certificate.
51. Section 212.18(3) (d) provides as follows:
The department may revoke any dealer'scertificate of registration when the dealerfails to comply with this chapter. Prior torevocation of a dealer's certificate ofregistration, the department must schedule aninformal conference at which the dealer maypresent evidence regarding the department'sintended revocation or enter into acompliance agreement with the department.The department must notify the dealer of itsintended action and the time, place, and dateof the scheduled informal conference bywritten notification sent by United Statesmail to the dealer's last known address ofrecord furnished by the dealer on a formprescribed by the department. The dealer isrequired to attend the informal conferenceand present evidence refuting thedepartment's intended revocation or enterinto a compliance agreement with thedepartment which resolves the dealer'sfailure to comply with this chapter. Thedepartment shall issue an administrativecomplaint under s. 120.60 if the dealer fails
23
to attend the department's informalconference, fails to enter into a complianceagreement with the department resolving thedealer's noncompliance with this chapter, orfails to comply with the executed complianceagreement.
52. Section 213.692 provides in pertinent part:
(1) If the department files a warrant, noticeof lien, or judgment lien certificate againstthe property of a taxpayer, the department mayalso revoke all certificates of registration,permits, or licenses issued by the departmentto that taxpayer.
(a) Before the department may revoke thecertificates of registration, permits, orlicenses, the department must schedule aninformal conference that the taxpayer isrequired to attend. At the conference, thetaxpayer may present evidence regarding thedepartment's intended action or enter into acompliance agreement. The department mustprovide written notice to the taxpayer of thedepartment's intended action and the time,date, and place of the conference. Thedepartment shall issue an administrativecomplaint to revoke the certificates ofregistration, permits, or licenses if thetaxpayer does not attend the conference, enterinto a compliance agreement, or comply withthe compliance agreement.
53. Petitioner proved clearly and convincingly that
Respondent failed to comply with the requirements of chapter 212,
by failing to pay its substantial tax liability stemming from the
Final 2008 Assessment. Although Respondent initially challenged
the proposed assessment, Respondent did not go forward with its
challenge, choosing instead to dismiss its request for an
administrative hearing with prejudice.
24
54. Colorcars' voluntary dismissal with prejudice of its
petition challenging the proposed sales tax assessment had the
legal effect of rendering final the Department's earlier
free-form proposed assessment. See, e.g., RHPC, Inc. v. Dep't of
HRS, 509 So. 2d 1267, 1268 (Fla. 1st DCA 1987) (voluntary
dismissal of a petition for administrative hearing to challenge
the denial of a certificate of need application terminated
jurisdiction; dismissal of the petition means that the earlier
free-form denial of the application by the agency took force and
became final agency action). The 2009 Agreed Dismissal, executed
by Mr. Early, as Colorcars' qualified representative, recognized
as much by acknowledging that the assessment was final as of the
date that reconsideration of the NOPA was denied (August 19,
2008) and that the Final 2008 Assessment remained final, in
force, and effective in its entirety.
55. At times during the final hearing and in Colorcars'
PRO, Colorcars impermissibly strayed into arguments that seemed
to attack or question the validity of the Final 2008 Assessment,
despite Colorcars' prior abandonment of its right to challenge
that assessment. As made clear at the final hearing, Colorcars
is bound by its 2009 Agreed Dismissal, in which it voluntarily
gave up its right to challenge the Final 2008 Assessment. Thus,
no such arguments were considered.
25
56. It is undisputed that the Final 2008 Assessment was a
determination that Colorcars had failed to comply with its
obligations under chapter 212, and as a result, Colorcars owed a
substantial sales tax debt to the Department, with penalties and
interest.
57. It is undisputed that as of the final hearing date,
Colorcars has never voluntarily paid one dime of the substantial
debt for sales tax deficiencies per the Final 2008 Assessment,
plus penalties and accruing interest.
58. Colorcars conceded this substantial tax liability under
chapter 212, but argued that "the Department is making this look
much worse than it is." According to Colorcars, its tax
liability is not so bad because the sales tax deficiencies were
due to a Department determination that Colorcars failed to
collect sales tax that it should have collected, as opposed to a
determination that Colorcars collected sales tax from customers,
but did not pay the collected tax over to the Department. No
competent evidence was presented in the record of this case to
detail the nature of the tax deficiencies imposed by the Final
2008 Assessment, but that detail is not necessary. The Complaint
charges Colorcars with failure to comply with an admitted
obligation imposed pursuant to chapter 212, by not paying the
Final 2008 Assessment. "the department may revoke any dealer's
certificate of registration when the dealer fails to comply with
26
this chapter." § 212.18(3) (d). Colorcars' argument that this
admitted failure to comply with chapter 212 is not so bad is
rejected. With all due respect, Colorcars' admitted failure to
pay one dime of the Final 2008 Assessment voluntarily in the
three and one-half years after Colorcars' withdrew its challenge
to the assessment, is certainly not good or compliant.
59. As additional, but related grounds for revocation, the
Department relied on its filing of a tax warrant in the Sarasota
County official records to secure the Final 2008 Assessment after
the 2009 Agreed Dismissal. In addition, the Department rel~ed on
its filing in 2010 of a judgment lien with the Secretary of State
to secure that same tax liability.
60. Colorcars does not dispute the Department's statutory
authority to revoke certificates of registration when the
Department has filed tax warrants and judgment liens in the
public records. However, Colorcars argued that, in this case,
the Department's tax warrant was issued too soon and should be
deemed "void ab initio."
61. In advancing this argument, Colorcars relied on section
213.731, which provides as follows:
In the absence of jeopardy to the revenue,no warrant or other collection action shallbe issued or taken until 30 days afterissuance to the taxpayer of a noticeinforming him or her of such impendingaction or notifying him or her that suchaction is indicated or authorized in the
27
circumstances. The department shall, byrule, provide procedures to afford thetaxpayer the opportunity to pay any tax,penalty, or interest on which collectionaction is sought which is not based onjeopardy, or to protest the circumstancesunderlying billing notices on whichcollection action is sought, to thedepartment within 20 days after such noticeis issued. Such notice shall inform thetaxpayer of these available protest andreview rights. This section does not applyto final assessments for which rights toreview under s. 72.011 have expired.(emphasis added).
62. There is no question that Colorcars had notice of the
proposed assessment stemming from the audit of Colorcars'
2001-2004 operations, or that Colorcars was afforded the right to
protest the assessment, seek reconsideration, and then seek
review under section 72.011, Florida Statutes. Colorcars was
afforded those rights and exercised those rights, at least to the
extent of initially seeking review under chapter 120 in DOAH Case
No. 08-5442. However, as detailed above, Colorcars abandoned any
review of the assessment by voluntarily dismissing its petition
with prejudice. In the 2009 Agreed Dismissal, Colorcars
acknowledged the finality of the assessment as of August 19,
2008. Colorcars' review rights expired by virtue of Colorcars'
dismissal with prejudice. 91 Thus, according to the last sentence
of section 212.731, the statute has no application to the tax
warrant issued on rebruary 19, 2009, and duly recorded in the
official records of Sarasota County on February 20, 2009. The
28
tax warrant provides a separate, but related, basis for revoking
Respondent's Certificate. However, the primary basis remains the
underlying sales tax liability established by the Final 2008
Assessment, as the tax warrant simply was a way to attempt to
secure and collect the sales tax liability.
63. Colorcars offered no argument regarding the judgment
lien certificate in evidence, which was asserted as a separate
basis for revocation. The judgment lien certificate was issued
and recorded with the Secretary of State in 2010 to secure
Colorcars' tax liability stemming from the Final 2008 Assessment.
Pursuant to section 213.692(1), issuance of this judgment lien
certificate against Colorcars provides a separate basis for
revoking Colorcars' Certificate. As is true for the tax warrant,
however, the underlying tax liability remains the primary basis
for revocation in that the judgment lien certificate represents
another means to secure and attempt to collect on the underlying
sales tax liability that was established by the Final 2008
Assessment.
64. The Department proved clearly and convincingly that
Colorcars failed to pay sales taxes collected from customers when
they were due at the time the December 2011 and January 2012
sales tax returns were filed. As to these unpaid taxes,
Colorcars' knowing failure to pay is tantamount to theft of state
funds--this is the "bad" kind of sales tax liability described by
29
Colorcars (when trying to distinguish its liability for the
substantial Final 2008 Assessment that remains unpaid). See
§ 212.15. Here, Colorcars argued that the focus should be on how
"minor" the amount is (instead of dwelling on how bad this type
of tax liability is). But Colorcars admittedly collected a total
of $1,401.16 of sales tax from its customers for the purpose of
paying those sales tax dollars over to the Department. These
dollars became state funds the moment they were collected, and
Colorcars was required to pay them over the moment they were due.
§ 212.15.
65. Colorcars sought to excuse its admitted failure by
claiming impossibility caused by the Department's freeze on a
bank account set up for electronic tax payments. Colorcars
argued, but failed to prove, that it believed that it could only
pay those taxes electronically. Indeed, the evidence was to the
contrary. Moreover, Colorcars itself was on notice at least by
March 7, 2012, that the Department would accept "certified funds"
to pay the sales tax liabilities established by the December 2011
and January 2012 returns. Colorcars never attempted to make
payment to the Department, and at least by March 7, 2012, that
failure to pay over monies collected from customers, plus
penalties and accrued interest, was knowing and in bad faith.
These additional violations of Colorcars , obligations under
chapter 212 provide additional grounds to revoke its Certificate.
30
66. The Department did not meet its burden of proof with
regard to the claimed failure to pay a penalty and fee assessed
for a late-filed corporate tax return. No clear evidence was
presented to establish the allegation that the 2009 corporate tax
return was filed late. A worksheet summary prepared from
undisclosed source information several years after the claimed
late filing was insufficient to prove that the 2009 corporate tax
return was filed late.
67. The Department complied with the conditions precedent
to revoke a certificate of registration, set forth in sections
212.18(3) (d) and 213.692. The Department scheduled an informal
conference, of which Colorcars was given notice and told to
attend. The Department accommodated Colorcars by delaying the
informal conference for two months and resetting the conference
for the specific date requested by Colorcars. Colorcars was
informed of the Department's intended action and given the
opportunity to present evidence.
68. Colorcars offered a myriad of arguments apparently
intended to establish that the Department should be compelled to
enter into a different, more favorable compliance agreement than
offered at the informal conference. Along this vein, Colorcars
complained that the Department put an improper personal guarantee
clause in the draft compliance agreement, which Mr. Early would
not sign. Colorcars asserted in its PRO that the parties had
31
actually reached a different oral agreement without any personal
guarantee (an assertion unsupported by any credible record
evidence) and that the alleged oral agreement should prevail. In
addition, Colorcars argued that the Department was required to
reduce Colorcars' sales tax liability because the debt should
have been deemed uncollectable. Colorcars argued in its PRO that
the Department should be faulted for not investigating Colorcars'
financial status.
69. No competent evidence was presented that would allow a
finding to be made as to the reasonableness under the
circumstances of the Department's exercise of discretion in
crafting the draft compliance agreement that was offered to
Colorcars. Colorcars was on notice that the informal conference
was its opportunity to present evidence; if evidence was not
presented, then Colorcars did not avail itself of the opportunity
and cannot point the blame in the Department's direction for not
conducting an investigation. See, e.g., Fla. Admin. Code
R. 12-3.003 (specifying procedures for requesting compromise
based on collectability, including requirement that taxpayer
submit audited financial statements to support the request) .
Moreover, it is far from clear that evidence of a compromised
financial condition alone would necessarily lead to an agreement
to reduce the debt, as opposeq to, for example, asking for a
personal guarantee, or, as authorized in section 212.14(4),
32
requiring the taxpayer to post security in the form of cash
deposit, bond, or other security as a condition to retaining its
Certificate.
70. The Department exercised its discretion to craft a
compliance agreement that made provision for the retirement of
Colorcars' tax obligation on an installment basis on terms that
were in the state's best interests (i.e., with Mr. Early's
personal guarantee). The draft compliance agreement was offered
to Colorcars and rejected. Mr. Early's refusal to sign the
offered compliance agreement for Colorcars allowed the Department
to proceed to issue the Complaint to pursue revocation of
Colorcars' Certificate.
71. As a final point of challenge, Colorcars contends that
this administrative proceeding violated section 213.015(3), part
of the Taxpayers' Bill of Rights,lOI by depriving Colorcars of its
right to counsel at the final hearing. Section 213.015(3)
provides that the revenue statutes and Departmental rules
guarantee the following to taxpayers:
The right to be represented or advised bycounselor other qualified representatives atany time in administrative interactions withthe department, the right to proceduralsafeguards with respect to recording ofinterviews during tax determination orcollection processes conducted by thedepartment, the right to be treated in aprofessional manner by department personnel,and the right to have audits, inspections ofrecords, and interviews conducted at a
33
reasonable time and place except in criminaland internal investigations (see ss. 198.06,199.218,201.11(1),203.02,206.14,211.125(3),211.33(3),212.0305(3),212.12(5)(a), (6)(a), and (13), 212.13(5),213 . 05, 213. 21 (1) (a) and (c), and 213. 34) .
This statute does not, by its terms, purport to establish rights
of litigants in administrative hearings under chapter 120, but
rather, clarifies the rights of taxpayers in their direct
dealings with the Department under the referenced statutes.
72. By a different statute, parties to administrative
proceedings are afforded the right to be self-represented or
represented by counselor qualified representative.
§ 120.57(1) (b). There is no guaranteed right of counsel in
administrative proceedings. See, e.g., Thompson v. Dep't of
Prof'l Reg., 488 So. 2d 103, 105 (Fla. 1st DCA 1986)
(constitutional guarantee of right to counsel is not applicable
to administrative proceedings involving the revocation of
licenses issued by the state to those engaged in regulated
businesses and professions); accord Santacroce v. State, Dep't of
Banking and Fin., 608 So. 2d 134, 136 (Fla. 4th DCA 1992).
73. Once informed of its right to represent itself or to
obtain representation by counselor a qualified representative, a
party to an administrative proceeding may be held to its
election. Id. In other words, these rights, as is true for
other rights, are subiect to being waived, including by the
34
failure to exercise one's rights in a timely manner with due
consideration for the orderly conduct and administration of the
proceeding in question.
75. In this case, Colorcars was given multiple notices of
its right to be self-represented or represented by counselor
qualified representative. Colorcars made its election in its
Petition and then maintained that election throughout the entire
pre-hearing preparation phase. Colorcars was informed of the
limitations on continuances. Colorcars waived its right to
change its election by not timely seeking to change the election
and having no legitimate excuse for its last-minute request.
76. Rule 28-106.210 provides appropriate parameters for
DOAH Administrative Law Judges (ALJ) to exercise their discretion
in ruling on motions for continuance. See Milanick v. Osborne,
6 So. 3d 729 (Fla. 5th DCA 2009) In that case, in a DOAH
administrative proceeding, a former mayor was awarded attorney's
fees and costs for having to defend himself against an ethics
complaint filed against him by Alexander Milanick. Milanick
appealed the Final Order issued by an ALJ that assessed
attorney's fees and costs against him. One point argued on
appeal was that it was an abuse of discretion for the ALJ to deny
his motion for continuance to retain counsel. 11/ The court
affirmed the denial of Milanik's motion for continuance, finding
no abuse of discretion:
35
A motion for continuance is addressed tothe sound judicial discretion of the trialcourt and absent abuse of that discretion itsdecision will not be reversed onappeal. The same discretion is vestedin the ALJ. Fla. Admin. Code R. 28-106.210.
77. Factors to be considered in exercising discretion on a
motion for continuance include whether the cause of the request
for continuance was unforeseeable and not the result of dilatory
practices. See, e.g., Krock v. Rozinsky, 78 So. 3d 38, 41 (Fla.
4th DCA 2012); Cole v. Cole, 838 So. 2d 1237, 1238 (Fla. 5th DCA
2003). As such, last-minute requests for continuance to retain
or change counsel have been rejected, absent proof that the
last-minute nature of the request is caused by some kind of
emergency. For example, in Cole, the court affirmed the denial
of a request to continue a trial where appellants' original
lawyer was granted leave to withdraw shortly before the trial was
scheduled. When new counsel appeared of record and moved for
continuance, the court denied the motion. On appeal, the court
affirmed, noting that "appellants must certainly have known that
a trial was coming, yet they took no action to secure new counsel
until the last moment." Id.
78. In Ryan v. Ryan, 927 So. 2d 109, 111-112 (Fla. 4th DCA
2006), the court held that a last-minute motion for continuance
because of new counsel should be held to a standard that requires
36
proof of an emergency that is not one of the party's own
creation:
It was the former wife who made the decisionto terminate her attorney. The need to finda new lawyer was not caused by the illness,death, or disability of her prior lawyer orof a critical trial witness. Theseare the circumstances under which trialcourts have been found to have abused theirdiscretion; not when the emergency is of theclient's creation. (emphasis added).
79. It is appropriate, in considering a last-minute motion
for continuance, whether parties were informed in a pre-trial
order that such motions are required to adhere to specified
terms. Taylor v. Mazda Motor of Am., Inc., 934 So. 2d 518, 521
(Fla. 3d DCA 2005) (it was within the trial judge's discretion to
deny a motion for continuance, in accordance with the terms of
the pre-trial order limiting such motions.).
80. The right to counsel is not unbridled, even in criminal
cases, and may be limited in appropriate circumstances. Thus, in
Evans v. State, 741 So. 2d 1190 (Fla. 4th DCA 1999), the court
affirmed the judgment and sentence against a criminal defendant,
rejecting the argument that the trial court reversibly erred by
denying a motion for continuance on the day of trial, when the
public defender informed the judge that the defendant no longer
wished to be represented by him, and the family wanted to retain
a private attorney. The-court held:
37
[T]he defendant's right to select his ownprivate attorney is not unbridled and maybe limited in favor of considerations ofjudicial administration, or if made in badfaith for the sake of arbitrary delay or tootherwise subvert judicialproceedings. The freedom to havecounsel of one's own choosing may not beused for purposes of delay[.] . Lastminute requests are disfavored.
Id. at 1191 (internal citations, quotation marks omitted).
81. As set forth in the Findings of Fact, Respondent's
belated attempt to add counsel was not due to a bona fide
emergency, such as an unforeseeable hospitalization, death, or
incapacity. Instead, it was situation of Respondent's own
making, despite ample notice of the limitations on last-minute
continuances. Respondent waived its right to timely and
appropriately exercise its right to add counsel. The request to
delay the final hearing because of the last-minute appearance
filed by Mr. Resnick, after the pre-hearing preparation phase was
closed and all deadlines had passed, whose first and only
activity of record was to file a motion for continuance because
counsel had a schedule conflict making him unavailable for the
hearing he was just retained for, must be rejected as a
transparent attempt by Respondent to secure delay.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of
Law, it is RECOMMENDE.D that the Department of Revenue revoke the
38
Certificate of Registration held by Respondent, Colorcars
Experienced Automobiles, Inc., now known as Experienced Vehicles,
Inc.
DONE AND ENTERED this 13th day of December, 2012, in
Tallahassee, Leon County, Florida.
ELIZABETH W. MCARTHURAdministrative Law JudgeDivision of Administrative HearingsThe DeSoto Building1230 Apalachee ParkwayTallahassee, Florida 32399-3060(850) 488-9675Fax Filing (850) 921-6847www.doah.state.fl.us
Filed with the Clerk of theDivision of Administrative Hearingsthis 13th day of December, 2012.
ENDNOTES
1/ John T. Early, III, uses the suffix "esq." to indicate that heis an attorney licensed to practice in another state, but he isnot licensed to practice in Florida. Mr. Early prepared andsigned the Petition for Formal Administrative Hearing in which herepresented that "John T. Early, III, esq.... shall be therepresentative of the [Respondent]."
2/ Mr. Resnick filed a Notice of Appearance on behalf ofRespondent on September 18, 2012. Mr. Resnick did not appear atthe final hearing on September 20, 2012, on Respondent's behalf.Instead, Respondent was represented by Mr. Early, Respondent'spreviously designated representative. NotwithstandingMr. Resnick's failure to appear at the hearing, Mr. Early wasinformed that Mr. Resnick was still considered an attorney ofrecord for Respondent and that Mr. Resnick could prepare andsubmit the post-hearing proposed recommended order onRespondent's behalf. Mr. Resnick has not moved to withdraw, and
39
thus, still appears as attorney of record for Respondent.Mr. Resnick's signature does not appear on Respondent's proposedrecommended order; it is unknown whether Mr. Resnick prepared orassisted in the preparation of the post-hearing filing, as he waspermitted to do. Mr. Early represented at the final hearing thatMr. Resnick would remain active in the case despite not appearingon September 20, 2012.
3/ Included in the DOAH file for Case No. 08-5442 is a requestfiled by Mr. Early to be recognized as a qualified representativefor Colorcars and an affidavit executed and filed by Mr. Early insupport of his request. An Order was entered accepting Mr. Earlyas qualified representative in that proceeding based on adetermination that "it appears Early is qualified to appear inthis administrative proceeding."
4/ The Department's witness testified that the amount levied wasjust over $62,000.00. Mr. Early testified that $64,000.00 waslevied. No evidence was offered to pinpoint the precise amount,but as explained below, it is unnecessary to do so for purposesof resolving the issues presented in this proceeding.
5/ The testimony by the Department's witness that Colorcars wouldhave been allowed to pay the collected sales taxes by some meansother than electronically was corroborated by the draftcompliance agreement in evidence offered by the Department toColorcars at the informal conference held on March 7, 2012, whichis discussed in greater detail below. The draft complianceagreement included a requirement that "Mr. Early will payoutstanding liabilities for sales and use tax 12/2011 and 1/2012by close of business 12 March 2012 in certified funds."(emphasis added). Thus, at least by the informal conference heldon March 7, 2012, Mr. Early knew that the Department would accepta certified check or other form of certified funds to satisfyColorcars' outstanding sales tax liabilities for December 2011and January 2012.
6/ The Department's witness testified that he created a worksheeton March 5, 2012, to summarize Colorcars' tax liabilities. Heexplained the entry on the last worksheet page as a penaltyassessed because Colorcars' 2009 corporate income tax return wasfiled late. However, the witness did not describe the sources ofinformation he used to enter this worksheet item. Thus, it isunclear whether he relied on information conveyed to him byothers or whether he personally reviewed documentation showingthe transmission date and receipt date of the 2009 corporateincome tax return. In the face of Colorcars' belief that the
40
return was timely transmitted, the Department's summary documentwas insufficient to clearly and convincingly prove the charge.In contrast, even though the underlying documents establishingthe unpaid sales taxes due with the December 2011 and January2012 returns were not offered in evidence, the Department's proofsufficed, in large part, because Colorcars did not dispute thefact or amounts of its liability, admitting that these taxesremained unpaid as of the hearing date.
7/ Mr. Early was attempting to explain the problems he had withthe draft compliance agreement, when he brought up the fact thathe retained another lawyer to represent Colorcars at therescheduled March 7, 2012, informal conference, and then asked topostpone the conference because the newly-retained lawyer was notavailable that day. Mr. Early explained that he had a problemwith a clause in the draft compliance agreement because,according to Mr. Early, it stated that each party was advised bycounsel, when that was not true because Colorcars could not berepresented by counsel that day. However, the clause thatMr. Early referred to actually said that the parties "have hadthe opportunity to consult with counsel prior to executing thisagreement." Just as Colorcars and Mr. Early had everyopportunity in this DOAH proceeding to consult with and berepresented by counsel, Colorcars and Mr. Early had theopportunity to consult with counsel at the informal conference,but chose not to retain one who was available on the rescheduledconference date selected by Mr. Early two months in advance.Rights and opportunities can be waived and squandered when theyare not timely or appropriately exercised.
8/ Unless otherwise specified, references herein to the FloridaStatutes are to the 2011 codification, as the law in effect whenthe Department initiated the revocation process, and when thealleged violations occurred (with the exception of the taxdeficiency assessment rendered final in August 2008 by Colorcars'dismissal of its administrative hearing request) .
9/ Colorcars argues in its PRO that DOAH Case No. 08-5442resulted in a "judgment," which was subject to a 30-day window toappeal. To the contrary, the administrative proceeding wasclosed by an Order Closing File after the 2009 Agreed Dismissalwas filed. As recognized by RHPC, supra, the legal effect ofColorcars' voluntary dismissal with prejudice was to divestjurisdiction and render the proposed agency action (datedAugust 19, 2008) final. Colorcars voluntarily abandoned itsreview rights.
41
10/ The Taxpayers' Bill of Rights, codified in section 213.015,was enacted pursuant to the Florida Constitution, Article 1,section 25, which provides as follows: "By general law thelegislature shall prescribe and adopt a Taxpayers' Bill of Rightsthat, in clear and concise language, sets forth taxpayers' rightsand responsibilities and government's responsibilities to dealfairly with taxpayers under the laws of this state."
11/ A review of the DOAH docket in the underlying administrativecase shows that the motion for continuance was filed four daysbefore the final hearing was scheduled to take evidence on theamount of attorney's fees and costs, which were in dispute. SeeOsborne v. Milanick, DOAH Case No. 07-3045FE (Emergency Motion toContinue, September 24, 2007; Hearing held September 28, 2007).
COPIES FURNISHED:
Marshall Stranburg,Interim Executive Director
Department of RevenuePost Office Box 6668Tallahassee, Florida 32314-6668
Nancy Terrel, General CounselDepartment of RevenuePost Office Box 6668Tallahassee, Florida 32314-6668
John Mika, EsquireOffice of the Attorney GeneralThe Capitol, Plaza Level 01Tallahassee, Florida 32399-1050
Robert Brian Resnick, EsquirePost Office Box 1872Boca Raton, Florida 33429-1872
John T. Early, IIIColorcars Experienced Auto, Inc.2311 Tamiami TrailNokomis, Florida 34275-3474
42
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within15 days from the date of this Recommended Order. Any exceptionsto this Recommended Order should be filed with the agency thatwill issue the Final Order in this case.
43
01-14-2081 03:13 WOLFRIDGE FRRM LTD 9026241417., . PRGE1
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
THE FLORIDA DEPARTMENT OF REVENUE,
Petitioner
vs.
COLORCARS EXPERIENCED AUTOMOBILES,INC"
N/K/AEXPERIENCED VEHICLES, INC
Respondent
)
)
)
)
)
)
CASE NO: DOR -12-41 AC
RESPONDENT'S EKC~r~UONS TO-RECOMMENDED ORDER
Respondent hereby files the following exceptions with the Florida Department ofRevenue to the recommended order iT'! this case entered December 13,2012
Exceptions Taken to Findings of Fact
Respondent takes exception to the following findings offact in the Recommended Order.
1. Page 6, Paragraph (hereinafter) "p l' 5
The ALJ concludes that the tax liability of the Respondent was"...based on an audit ofRespondent' 5 business". In fact no audit was ever conducted to ascertain tax liability asthe Department of Revenue failed to begin its audit within the mandatory 120 period afternotice and was barred from doing so. Respondent made this clear at the hearing but AUdisregarded this information.
EXHIBIT 3
01-14-2081 03: 13 l>lOLFRIDGE FRRM LTD 9026241417
2. Page Jt ,P19
The ALJ states that Respondent believed that it "should be excused;; from paying thesules tax which it collected in the months of December 2011 and January 2012.Respondent never looked "to be excused" for not paying over, the tax.
Respondent asked that the Department of Revenue, having frozen the only bank accountof the Respondent, and requiring that the Respondent pay its taxes by direct. electronicbank account transfer; be estopped from claiming as a basis for revocation, the nonpayment of the escrowed t.ax collected.
3. Page 12;P20
PRGE2
2
The AtJ ~tates that the testimony ofKenneth Sexton was received "withoutcontradiction" as to alternative methods of payment. In choosing her language the ALlgives the impression that the witness's testimony not only underwent no "selfcontradiction" but was unchallenged, while the Responded offered "contradiction" instating that it was required to pay its taxes electronically by Department ofRevenue rulesas specified by the size of its alillual tax collections.
4. Page 12,P21 The ALJ concluded ~'Mr. Early gave no legitimate reason for holdingthese funds" It was explained that there was one route ofpayment, that ofelectronictransfer as mandated by the Department of Revenue. Checks could not be written as thecorporation had no other bank account. Cash could not be paid as the corporation doesnot deal in ca')h.
5. Page 13, P22 As to the filing of its 2009 tax return, the Respondent testHied as totimely filing and did not concede that the DOR received it late. It was believed that it wasn~ce.ived in a timely fashion but processed late by the DOR internally.
6. Page 14,P28. The AU indicated that Early refused to sign the proposed complianceagreement indicating that a usurprise clause" was placed in the agreement whileaccepting that such a clause was "standard" based 011 DOR employee testimony.
Prior to a presentation of a written document by DOR personnel, all discussions at thecompliance conference; as to material points of the agreement, were oral.
No discussion was ever held as to personal guarantees prior 10 its presentation in writing.This was a corporate debt for which there never was any personal liability. What wasmost egregious about the personal guarantee was that it attempted in its language tonullify the shield of a corporate officer by stating that one would become personallyHable regardless of a claim of signing in a corporate capacity. The Respondent found tinsunconscionable and could not sign for this reason.
2
01-14-2081 03: 14 l-<IOLFRIDGE FARM LTD 9026241417 PAGE3
3
7. Pages 15/16, P30. The ALJ concluded that the DOR had apparently reduced the debt assome sort ofmagnanimous consideration for enteJ1ng a compliance agreement. The factis that the debt was simply reduced by ftmds taken after levy.
8.Page 16,P31. Early never made a claim that the Respondent was not represented by a"Qualified Representative". He made the argument that the corporation, by virtue of theTaxpayer Bill of Rights, as part of the Florida Constitution, had a right to be representedby a lawyer in the proceeding.
9.Page 20,P43. "Mr. Early displayed a lack ofcandor" on the part of the ALJ fas anelToneous understanding of the facts that had taken place. Early was simply relaying tothe court what his attorney had told him, that the attorney for the DOR and Resnick werein agreement with a continuance. This was what was relayed to Early. Ironically if theALl had allowed a continuance Mr Resnick would have been at the hearing and anerroneous conclu:-;ion of"laek of candor" would have been avoided perhaps influencingthe outcome of this case.
10. Page21 ,P46. As to a conclusion that Early was seeking delay concerning differentcounsel's inability to appear on March 7, 2012, Early possessed written emailconfirmation from this attomey weeks earlier that he would be available March 7;2012where at the last Inoment 48 hours prior he called Early to say he would be unable toattend.
Exceptions Taken!!§ to C.9.tl~J.!J~i.Q...ns 0 fLaw
II. Page 28,P62. The ALJ concluded that when CoIorCars agreed to a dismissal withprejudice on February 15,2009, it gave up all rights of review and as such there was norequirement that the Department ofRevenue wait 30 days before filing a Tax Warrantwhich it filed on February 16,2009. ColorCars disputes the validity of the warrant.
It is the Respondent's position that a" a matter oflaw it did not give up its right ofreview and had a right to review by the District Court of the State of Florida until March13,2009. As such, the warrant was issue prematurely, was of 110 effect, and cannot fonnthe basis for a certificate revocation.
12. Page 33,P71. The ALJ concludes that the Florida Taxpayer's Bill of Rights whichguarantees that all taxpayers have a right to be represented by a lawyer in '~any
administrative interactions with the Department", does not apply to administrativehearings where the Department ofRevenue is a party.
Effectively the ALJ concludes that the constitutional guarantees ofthe FloridaConstitution are trumped by administrative law regulations and administrative case lawand that an administrative hearing is not an ~'interactiol1" with the Departn1ent.
3
01-14-2081 03:14 WOLFRIDGE FARM LTD 9026241417'" I '-I', n
PAGE4
4
13 Page34, P72 The ALJ asserts on the one hand that there is no light to counsel in anadministrative law hearing and then in the same breath contends that the Respondentwaives the nOll-existent tight when it elects a quaJH1ed representative.
It is the position of the Respondent, that there is a continuous right to counsel as providedby the Florida Constitution and this right is not waived by the selection of a qualifiedrepresentative.
It is possible that any qualified representative at any time in the proceeding could realizethat he was not qualified to continue with the case. This was the situation in this case.
The ALl chose to shut the door to qualified legal representation for a business of 18 yearsduration, facing termination of its right to do business. The Respondent believes thisviolates the Constitution ofFJ.orida
Submission ofRespondent~.§ g~~eptions to Recommended Order
Respectfully Submitted,
CoJ.orCars Experienced Automobiles,lnc. N/K/A Experienced Vehicles, Inc
1~.~._,_.. _.._.
Its President
I hereby certify that the foregoing Exceptions to Recommended order was deliveredvia FAX to (850) 488 M 7112 and via First Class Mail to the Agency Clerk, Office of theGeneral CounseC Florida Department of Revenue, Post Office Box 6668, Tallahassee]FL 32314-6668 on December 26, 2012
4!df-2?2/""'''~ I .., ~
;( I
......··ioFin T. Early, III esq.
4