findings of fact conclusions of law€¦ ·  · 2013-01-24department pursuant to section 212.18,...

71
.- .... - - -------_._._.----- STATE OF FLORIDA DEPARTMENT OF REVENUE STATE OF FLORIDA, DEPARTMENT OF REVENUE Petitioner, vs. COLORCARS EXPERIENCED AUTOMOBILES, INC. NIKIA EXPERIENCED VEHICLES, INC., Respondent. -------- --:1 DOR 2013-001 - FOF FILED Revenue - Agency Clerk "'-6' zl/·,a-D13 By: l.1.pJUJL . rAlW/\ DOR Case No.: DOR-12-41 AC DOAH 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

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~~~~~-"---"-_.- .- ....,,-_._--~------_.- - - -------_._._.-----

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

ellis/ness CUS1DmerGaiewey

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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