STATE OF FLORIDA DEPARTMENT OF REVENUE TALLAHASSEE, FLORIDA

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1 STATE OF FLORIDA DEPARTMENT OF REVENUE TALLAHASSEE, FLORIDA FLORIDA DEPARTMENT OF REVENUE Petitioner, vs. CASE NO (DOAH SPIN AND MARTY, INC., d/b/a CRABBIT S PUB, DOR 07-2-FOF Respondent. FINAL ORDER This cause came before me, as Executive Director of the Florida Department of Revenue (the Department for the purpose of issuing a final order. The Administrative Law Judge assigned by the Division of Administrative Hearings issued a Recommended Order, recommending that the Certificate of Registration held by Respondent, be revoked. A copy of the Recommended Order entered on the 7 th day of February, 2007, by Administrative Law Judge Harry L. Hooper is attached to this Final Order and is incorporated by reference as if fully set forth herein. No exceptions to the recommended order were filed. The Department has jurisdiction of this cause. Accordingly, it is ORDERED: The Certificate of Registration No , held by Spin and Marty, Inc., d/b/a Crabbit s Pub, is revoked.

2 DONE AND ENTERED in Tallahassee, Leon County, Florida this 8 th day of March, STATE OF FLORIDA DEPARTMENT OF REVENUE _JZ Jim Zingale Executive Director CERTIFICATE OF FILING I HEREBY CERTIFY that the foregoing FINAL ORDER has been filed in the official records of the Department of Revenue this 9 th day of March, NP Nancy Purvis AGENCY CLERK Any party to this Order has the right to seek judicial review of the Order pursuant to Section , Florida Statutes, by filing a Notice of Appeal pursuant to Rule Florida Rules of Appellate Procedure, with the Agency Clerk of the Department of Revenue in the Office of the General Counsel, P.O Box 6668, Tallahassee, Florida , and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the Clerk of the Department. Copies furnished to: Harry L. Hooper, Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL James NcNiff Spin and Marty, Inc., d/b/a/ Crabbit s Pub

3 10050 Sleepy Willow Court Spring Hill, Florida James McNiff Crabbit s Pub Spring Hill Drive Spring Hill, Florida Jarrell A. Murchison, Senior Assistant Attorney General Warren J. Bird, Assistant Attorney General Office of the Attorney General The Capitol-Plaza Level 01 Tallahassee, Florida J. Bruce Hoffmann, General Counsel Rick McClure, Assistant General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida Jim Zingale, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF REVENUE, Petitioner, vs. Case No SPIN AND MARTY, INC., d/b/a CRABBIT'S PUB, Respondent.

4 RECOMMENDED ORDER This cause came on for formal hearing before Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings, on January 3, 2007, in Brooksville, Florida. APPEARANCES For Petitioner: Warren J. Bird, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida For Respondent: James McNiff Spin and Marty, Inc., d/b/a Crabbit's Pub Sleepy Willow Court Spring Hill, Florida STATEMENT OF THE ISSUE The issue is whether Respondent s Certificate of Registration may lawfully be revoked. PRELIMINARY STATEMENT On September 20, 2006, Petitioner, Department of Revenue (Department, filed an Administrative Complaint, alleging that Respondent Spin and Marty, Inc. (Spin and Marty, had violated certain provisions of Chapter 212, Florida Statutes, including the requirement to pay taxes when due. On October 25, 2006, the Department received a request for a hearing from Spin and Marty. The request and accompanying documents were filed with the Division of Administrative Hearings on October 30, The case was set for hearing in Brooksville, Florida, on January 3, 2007, and was heard as scheduled. The Department offered seven exhibits that were accepted into evidence. The Department called one witness. Spin and Marty offered two exhibits that were accepted into evidence, and presented the testimony of the corporate representative, James McNiff (Mr. McNiff. A transcript was filed January 26, The Department timely filed Petitioner's Proposed Recommended

5 Order. Spin and Marty did not file a proposed recommended order. Citations to statutes are to Florida Statutes (2006 unless otherwise noted. FINDINGS OF FACT 1. The Department is an agency of the State of Florida pursuant to Section The Department has the responsibility of administering the revenue laws of the state, including the laws relating to the imposition and collection of the state's sales and use tax, pursuant to Chapter Spin and Marty is a Florida corporation doing business as Crabbit's Pub whose principal address is Spring Hill Drive, Spring Hill, Florida. 3. Spin and Marty is a "dealer" as that term is defined in Chapter 212. It holds a certificate of registration issued by the Department that is numbered Spin and Marty initially registered with the Department on January 30, The sales and use tax collected by a registrant, such as Spin and Marty, become the property of the state at the moment they are collected. A registrant is an agent of the state when collecting the sales and use tax. Spin and Marty was required to remit the sales and use tax collected to the state on or before the 20th of each month. 5. From November 1999 until December 2003, Spin and Marty filed no returns and paid no sales and use taxes to the Department. Also, Spin and Marty, in November 2005, did not file a return or pay sales and use taxes. 6. In a letter dated November 20, 2001, Spin and Marty was notified that the Department was going to audit its records. The Department received no response. In a letter dated April 3, 2002, Spin and Marty was again asked to contact the Department's auditor so a mutually agreed date could be set to conduct the audit. The Department received no response to this letter. The Department thereafter conducted an audit. 7.The result of the audit was a notice of proposed assessment which stated that Spin and Marty owed

6 $146, in back taxes, penalties, and interest through September 4, Neither Spin and Marty, nor its principal, Mr. McNiff, contested the audit findings. 8. A letter from the Department addressed to "Dear Taxpayer," dated August 5, 2002, was received by Spin and Marty. This letter stated that the Department wished to arrange a meeting in its office for the purpose of reviewing the Notice of Intent to Make Audit Changes dated June 18, Spin and Marty did not avail itself of this opportunity. 9. Six tax warrants were filed with the Clerk of Court in Hernando County against Spin and Marty. These warrants indicate that as of the day of the hearing Spin and Marty owed $175, to the Department. This amount includes the actual tax due, or in the case of warrant , the estimated tax due, penalties, interest, and filing fees. Interest continues to accrue. 10. Pursuant to notice from the Department, on July 31, 2006, Theodore Faugno, who works for Mr. McNiff's CPA, and Mr. McNiff met with Debra B. Smith, a Revenue Specialist III with the Department. 11. Neither Mr. McNiff nor Mr. Faugno contacted Ms. Smith following the meeting. This resulted in the Administrative Complaint seeking to revoke Respondent's Certificate of Registration. 12. Mr. McNiff related that during the period he failed to submit returns and remit the taxes then due, he experienced adverse health issues and the unplanned birth of a baby. However, he was able to operate Spin and Marty and make a profit. It is indubitably concluded that he could have also reported and remitted the tax due, had he been so inclined. CONCLUSIONS OF LAW 13. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding (1, Fla. Stat. 14. Pursuant to Subsection (3(a, "Every person desiring to engage in or conduct business in this state as a dealer... must file with the department an application

7 for a certificate of registration for each place of business, showing the names of the persons who have interests in such business and their residences, the address of the business, and such other data as the department may reasonably require." 15. Pursuant to Subsection (3(b, "The department, upon receipt of such application, will grant to the applicant a separate certificate of registration for each place of business, which certificate may be canceled by the department or its designated assistants for any failure by the certificateholder to comply with any of the provisions of this chapter." Spin and Marty received a Certificate of Registration as noted above. 16. Subsection (3(b further provides that no person shall engage in business as a dealer without having first obtained a Certificate of Registration and prohibits the operation of a business that does not have a Certificate of Registration. 17. Section provides that a person is exercising a taxable privilege when that person is in the business of selling tangible personal property at retail. Spin and Marty were engaged in selling tangible personal property at retail. 18. Subsection (3(d provides that the Department may revoke a Certificate of Registration when a dealer fails to comply with the requirements of Chapter Prior to revoking a Certificate of Registration the Department must, in accordance with Subsection (3(d, "schedule an informal conference at which the dealer may present evidence regarding the department's intended revocation or enter into a compliance agreement with the department. The department must notify the dealer of its intended action and the time, place, and date of the scheduled informal conference by written notification sent by United States mail to the dealer's last known address of record furnished by the dealer on a form prescribed by the department." 20. Subsection (3(d, provides that, "The dealer is required to attend the informal conference and present evidence refuting the department's intended

8 revocation or enter into a compliance agreement with the department which resolves the dealer's failure to comply with this chapter." 21. Subsection (3(d, further provides that, "The department shall issue an administrative complaint under s if the dealer fails to attend the department's informal conference, fails to enter into a compliance agreement with the department resolving the dealer's noncompliance with this chapter, or fails to comply with the executed compliance agreement." As noted above, Spin and Marty did nothing to address the Department's efforts to address its noncompliance. 22. The failure to collect and remit the tax is a "failure to comply with the requirements of Chapter 212." The Department complied with the prerequisites for revocation set forth in Subsection (3(d. Accordingly, the Department may lawfully revoke the certificate of registration possessed by Spin and Marty. RECOMMENDATION Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue revoke Certificate of Registration No , held by Spin and Marty, Inc., d/b/a Crabbit's Pub. DONE AND ENTERED this 7th day of February, 2007, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida ( SUNCOM Fax Filing ( Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 2007.

9 COPIES FURNISHED: Warren J. Bird, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida Jarrell L. Murchison, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida J. Bruce Hoffmann, General Counsel Department of Revenue 204 Carlton Building Post Office Box 6668 Tallahassee, Florida James McNiff Spin and Marty, Inc., d/b/a Crabbit's Pub Sleepy Willow Court Spring Hill, Florida James McNiff Crabbit's Pub Spring Hill Drive Spring Hill, Florida James Zingale, Executive Director Department of Revenue The Carlton Building, Room 104 Tallahassee, Florida NOTICE OF RIGHT TO SUBMIT EXCEPTIONS All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.