93-000249 Carl R. Glass, D/B/A Osceola Forge vs. Department Of Revenue Status: Closed DOAH Final Order on Wednesday, July 14, 1993.

Summary: Rental of billboard face for placement of advertizing message is rental of real estate and is taxable; equitable estoppel not proven; penalties waived.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARL R. GLASS, )

d/b/a OSCEOLA FORGE, )

)

Petitioner, )

)

vs. ) CASE No. 93-0249

)

DEPARTMENT OF REVENUE, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division

of Administrative Hearings by its duly designated Hearing Officer, Daniel M.

Kilbride, on May 5, 1993, in Orlando, Florida. The following appearances were

entered:

APPEARANCES

For Petitioner: Carl R. Glass (pro se)

d/b/a Osceola Forge

2749 North Orange Blossom Trail

Kissimmee, Florida 34741

For Respondent: James F. McAuley, Esquire

Assistant Attorney General

Capitol Building

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUES

Whether the lease of the face of a billboard sign for the purpose of

placing an advertising message on the billboard is an improvement to real

property for which sales and use tax is owed.

Whether the receipt by the Petitioner of incorrect tax information and

advise by employees of Respondent is sufficient to equitably release Petitioner

from an assessment of sales tax due to the State.

PRELIMINARY STATEMENT

Following an audit by Respondent, Petitioner filed a protest letter

challenging the assessment. On December 1, 1992, Respondent issued its Notice

of Decision. On January 6, 1993, Petitioner filed a Petition for Formal

Administrative Hearing with the Department of Revenue, and this matter was

referred to the Division of Administrative Hearings on January 14, 1993. On

January 28, 1993, Respondent, through counsel, filed a Motion to Dismiss. Said

motion was withdrawn on February 3, 1993, at which time the Respondent filed its

Answer to the petition. Following discovery, this hearing followed.

At the hearing, the parties offered in evidence a joint stipulation of

fact, which included a sample lease and the Department's Notice of Decision.

Petitioner testified in his own behalf, and offered no exhibits in evidence.

The Department called two witnesses and offered two exhibits in evidence. The

transcript of the hearing was filed on June 14, 1993. Petitioner did not file

proposed findings of fact as of the date of the filing of this order.

Respondent filed proposed findings of fact and conclusions of law on June 24,

1993.

My specific rulings on Respondent's proposals are set forth in the Appendix

attached hereto.

Based upon all of the evidence, the following findings of fact are

determined:

FINDINGS OF FACT

1. Petitioner is Carl R. Glass, d/b/a Osceola Forge located at 2749 North

Orange Blossom Trail, Kissimmee, Florida 34744.

2. Petitioner is engaged in the business of manufacturing and fabricating

burglar bars, steel gates, decorative plastic ornamental castings and injection

moldings.

3. Petitioner built and erected one double sided billboard on his business

property at 2749 North Orange Blossom Trail, Kissimmee, Florida. It is anchored

by its owns supports into the ground as a permanent improvement to Petitioner's

real property. The size of the billboard is approximately 12' x 38', plus an

apron that runs along the length of the bottom of the billboard.

4. Petitioner leases the face and apron of each side of billboard to

customers who are generally required to supply their own labor and material to

create an advertising message.

5. The billboard was built to provide double-sided advertising for lanes

of traffic going northbound or southbound past Petitioner's place of business.

6. Petitioner has rented the billboard to various lessees for a monthly

rental fee over the relevant period. Petitioner did not charge or collect sales

and use taxes on the rental fee.

7. Respondent conducted an audit of Petitioner's entire business, for the

period May 1, 1986 through April 30, 1991. There was only one item assessed as

a result of the audit which was on the lease of the billboard located on

Petitioner's business property.

8. Petitioner was assessed sales and use taxes, interest and penalties

totalling $6,142.38, including taxes ($4,017.76) with a per diem interest rate

of $1.32 to be computed from 10/3/91 to the present.

9. Additional interest due, as of July 1, 1993, was calculated to equal

$842.16 (638 days x $1.32).

10. The sales tax assessment was based on invoices and other information

provided by the Petitioner and followed the Department of Revenue routine

procedures required for all audits.

11. From January 1987 through February 1991, Petitioner, or his secretary,

made five telephone calls from Osceola Forge to the Taxpayer Assistance Number

of the Department of Revenue's regional office located in Maitland, Florida,

requesting assistance. On each occasion, the Department's employee advised

Petitioner or his employee that they could call the Department's Tallahassee 800

taxpayer assistance number. On at least one occasion, Petitioner's secretary or

Petitioner was advised that the transaction was tax exempt, and need not be

collected.

12. Petitioner was aware of the 800 taxpayer assistance number in

Tallahassee and tried to call the number. However, he was unable to get

through, and called the local office only.

13. On April 9, 1992, Petitioner personally telephoned the Titusville

office of the Department of Revenue.

14. On each occasion, Petitioner inquired whether or not sales or use

taxes should be collected on the rental of the billboard.

15. A free, updated Sales and Use Tax Rules Book is available to any tax

payer upon request. In addition, a taxpayer could personally appear and bring

documentation relating to any questions relating to the sales and use tax at any

regional office.

16. Petitioner did not obtain an updated rules book or personally appear

at a regional office.

17. On April 30, 1992, Petitioner filed a Protest Letter with Respondent

challenging the abovementioned tax assessment.

18. Respondent issued to Petitioner a Notice of Decision dated December 1,

1992.

19. On January 8, 1993, Petitioner filed a Request for a Formal

Administrative Hearing with Respondent.

20. To date, Petitioner has not paid any of the contested taxes, interest,

and penalties to Respondent.

21. Petitioner relied on information provided by his secretary, his

accountant, and brief phone conferences with the DOR's Maitland office to

determine that the rental fees were tax exempt, and did not collect the sales

tax from his customers.

22. The DOR Audit Supervisor testified that there is a clear distinction

between the taxable rental of a billboard and the nontaxable services of placing

an advertising message on the billboard. The rental of the face of the

billboard is a taxable transaction. On the other hand, if a person rents or

leases a billboard, then hires a third party to place an advertising message on

the billboard, this advertising service is tax exempt.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has jurisdiction over the

parties to and the subject matter of this proceeding, and the parties thereto,

pursuant to subsection 120.57(1), Florida Statutes.

24. Section 212.031, Florida Statutes (1991), states that a sales tax is

due from every person "in the business of renting, leasing, letting, or granting

a license for the use of any real property. . ."

25. Rule 12A-1.051(22), Florida Administrative Code, considers "Roadside

billboards . . . erected on the site where they are to be permanently located,

and which rest on foundations, or have their own supports anchored into the

ground in a permanent manner . . . as improvements to real property."

26. Rule 12A-1.070(1)(a), Florida Administrative Code, reads: "Every

person who rents or leases any real property, or who grants a license to use . .

. real property is exercising a taxable privilege." Specifically, Rule 12A-

1.070(1), Florida Administrative Code, states: "An agreement between the owner

of real property and an advertising agency for the use of real property to

display advertising matter is a taxable license to use real property."

27. The rate of tax prior to February 1, 1988, was 5 percent and the rate

of Tax on or after February 1, 1988, is 6 percent. See Rule 12A-1.070(4)(b),

Florida Administrative Code.

28. The burden of proof in this case is on the Department to show by a

preponderance of the evidence that the sales tax assessment was proper.

29. An agency's rulemaking authority has been accorded great deference by

the courts, and will not be overturned unless the agency's interpretation of the

statutes are clearly erroneous. Pershing Industries v. Deptartment of Banking,

591 So.2d 991, 993 (Fla. 1st DCA 1991); Eager v. Florida Keys Aqueduct

Authority, 580 So.2d 771 (Fla. 3rd DCA 1991).

30. Petitioner's contention that the Dept. is estopped to collect sales

tax on the bill board is without merit. The elements of estoppel must be

specifically pleaded and proved. To establish estoppel the following must be

shown:

1.) Representation as to a material fact that is contrary to a later-

asserted position.

2.) Reasonable reliance on that representation, and

3.) A change in position detrimental to the party claiming estoppel.

Department of Revenue v. Hobbs, 368 So.2d 367, 368 (Fla. 1st DCA 1979).

31. Petitioner presented insufficient credible evidence to support his

claim that DOR had misrepresented to the taxability of the billboard rental.

The list of telephone calls on Petitioner's telephone bills do not provide

sufficient proof to establish that DOR made any representation to the taxpayer.

These documents merely show that six (6) brief telephone calls of 1-6 minutes

duration were made from Petitioner's place of business to the Maitland (Winter

Park area) Office of DOR over a five-year period. Moreover, Petitioner

testified that he had personally made only one, or perhaps two, calls personally

to DOR.

32. It is reasonable that a questions such as that posed by Petitioner on

billboard rentals might require additional information from the taxpayer.

Further, if there was any doubt as to the local DOR office response, the normal

procedure would be to refer the taxpayer to DOR's 800 number in Tallahassee

designated for Taxpayer Assistance. Petitioner admitted that he attempted to

call Tallahassee's 800 Taxpayer Assistance Number but claimed it was always

busy.

33. In addition to proof of some misrepresentation, the doctrine of

estoppel requires that any representation pertain to a "material fact." In this

case, Petitioner is claiming that there was a mistaken statement of law.

34. In the event that an employee of a state agency makes a mistake of

law, estoppel will not be applied against that state agency except in rare and

unusual circumstances. State Dept. of Revenue v. Anderson, 403 So.2d 397, 400

(Fla. 1981) ("the State cannot be estopped through mistaken statements of law");

Dolphin Outdoor Advertising v. DOT, 582 So.2d 709, 710 (Fla. 1st. DCA 1991).

35. Assuming that Petitioner had relied on advice given by DOR, Petitioner

presented no evidence to show that he had detrimentally changed position based

on the advice given by DOR. Petitioner also relied on his secretary's

assertions and inquiries to his accountant before determining not to collect the

tax.

36. Petitioner's reliance on the limited tax advice he obtained was not

reasonable. A reasonable person would seek more information before ingnoring

his obligation.

37. Petitioner has shown reasonable cause to abate also penalties in this

case.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Department of Revenue enter a Final Order upholding

its sales and use tax assessment, waive penalties and interest accrued prior to

October 2, 1991, and assess a tax of $4,017.76, plus interst from the date due.

DONE and ENTERED this 14th day of July, 1993, in Tallahassee, Florida.

___________________________________

DANIEL M. KILBRIDE

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of July, 1993.

APPENDIX

The following constitutes my specific rulings, in accordance with section

120.59, Florida Statutes, on proposed findings of fact submitted by the parties.

Proposed findings of fact submitted by Petitioner.

Petitioner did not submit proposed findings of fact.

Proposed findings of fact submitted by Respondent.

Proposed findings submitted by Respondent are accepted except as noted

below. Those proposed findings neither noted below nor included in the Hearing

Officer's findings were deemed unnecessary to the conclusions reached.

Rejected as argument: paragraphs 37, 38, 39

COPIES FURNISHED:

Carl R. Glass

2749 North Orange Blossom Trail

Kissimmee, Florida 34741

James McAuley, Esquire

Assistant Attorney General

Capitol Building

Tallahassee, Florida 32399-1050

Larry Fuchs

Executive Director

Department of Revenue

104 Carlton Building

Tallahassee, Florida 32399-0100

Linda Lettera

General Counsel

Department of Revenue

204 Carlton Building

Tallahassee, Florida 32399-0100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should consult with the agency that will issue the

final order in this case concerning their rules on the deadline for filing

exceptions to this Recommended Order. Any exceptions to this Recommended Order

should be filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARL R. GLASS,

d/b/a/ OSCEOLA FORGE,

Petitioner,

vs. Case No. 93-0249

DOR 93-19-FOF

DEPARTMENT OF REVENUE,

Respondent.

_____________________________/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order.

The Hearing Officer assigned by the Division of Administrative Hearings in the

above styled case submitted a Recommended Order to the Department of Revenue.

Respondent, in reply, filed Respondent's Exceptions To Recommended Order, and

Respondent's Proposed Substituted Order. Copies of the Recommended Order,

Respondent's Exceptions to Recommended Order, and Respondent's Proposed

Substituted Order are attached hereto.

Pursuant to Chapter 120, Florida Statutes, the Department has jurisdiction of

this cause.

The Hearing Officer in his Recommended Order recommended that the Department

enter a Final Order upholding its sales and use tax assessment of $4,017.76

imposed on the rental of Petitioner's single outdoor billboard to various

businesses for advertising purposes. The Hearing Officer also recommended that

all penalties be waived. However, the Hearing Officer also recommended the

waiver of accrued interest prior to October 2, 1991, with the accrual of

interest allowed only from that date. The Department corrects the Recommended

Order as to the date October 2, 1991, finding that the assessment, having been

sustained in the Recommended Order, showed the accrual of interest through

rather than prior to October 2, 1991. This corrected date is used in all

further references to the imposition or waiver of interest except in the direct

quote of the Hearing Officer as cited in page 5. of this Final Order.

The Department, after a thorough review of the entire record in this case,

adopts and incorporates by reference in this Final Order that portion of the

Recommended Order which upheld both the sales and use tax assessment of

$4,017.76, and the accrual of interest from and including October 3, 1991, and

which waived the penalties assessed the Petitioner. However, the Department

rejects that portion of the Recommended Order which waived the accrued interest

through October 2, 1991.

FINDINGS OF FACT

The Department hereby adopts and incorporates by reference in this Final Order

the Findings of Fact 1 through 10 as set forth in the Recommended Order.

The Department adopts and incorporates in this Final Order all of Findings of

Fact 11 except the last sentence which reads, "[o]n at least one occasion,

Petitioner's secretary or Petitioner was advised that the transaction was tax

exempt, and need not be collected." The Department's exception to this sentence

is based on the absence of any corroborated, nonhearsay evidence which would

support a finding that Petitioner's secretary was advised by the Department that

the transaction was exempt and that tax need not be collected. See transcript

(Tr.) of the hearing p. 80, lines 15 through 21; p. 81, lines 1 through 25; p.

82, lines 1 through 5. Consequently, this portion of the Findings of Fact 11 is

not supported by substantial, competent evidence.

The Department adopts and incorporates in this Final Order Findings of Fact 12

through 13.

The Department rejects Findings of Fact 14 as being factually incorrect because

such a finding described Petitioner, during telephone calls to the Department,

as having inquired on "each occasion" whether tax should be collected on the

rental of the billboard. The rejection of this finding is based on the

testimony of Petitioner that, as to the telephone calls, he made "[o]nly one of

them, to Miss Spivey," and in correction of that statement Petitioner added that

he ". . . was on the speaker phone with one of them at the Maitland office."

Tr., p. 114, lines 15 through 25. Consequently, Findings of Fact 14, to the

extent described above, is not supported by competent, substantial evidence.

The Department adopts and incorporates by reference in this Final Order the

remaining Findings of Fact 15 through 22.

CONCLUSIONS OF LAW

The Department hereby adopts and incorporates by reference in this Final Order

the Conclusions of Law 23 through 27 in the Hearing Officer's Recommended Order.

The Department rejects Conclusion of Law 28 of the Recommended Order wherein the

Hearing Officer concludes that "[t]he burden of proof in this case is on the

Department to show that by a preponderance of the evidence that the sales tax

assessment was proper." The Department first asserts that s. 120.575(2), F.S.

(1991), limits the burden of proof ". . . to a showing that an assessment has

been made against the taxpayer and the factual and legal grounds upon which the

applicable department made the assessment." In connection with sales and use

tax, under Part I, Chapter 212, F.S., an assessment is prima facie correct, as

provided in ss. 212.12(5)(b), 212.0505(5), 212.14(1), Florida Statutes (1991).

Thus, after the Department provides the factual and legal basis for the

assessment, the taxpayer then has the burden of proof, measured by a

preponderance of the evidence, to show that the assessment was improper.

Consequently, Conclusion of Law 28 is rejected. It is restated to express the

conclusion that the assessment was supported by adequate factual and legal bases

and that to overcome the presumption of correctness of the assessment the

taxpayer must show by the preponderance of the evidence that the assessment was

improper.

Finally, the Department rejects that portion of the Hearing Officer's

Recommendation which seeks to waive interest which has ". . . accrued prior to

October 2, 1991. . . ." This rejection is based on the requirement in s.

213.21(3), F.S. (1991), that interest be compromised only ". . . upon the

grounds of doubt as to liability for or collectibility of such interest." Under

the facts and circumstance of this case, where the assessment has been upheld,

the interest which has accrued through October 2, 1991, can not be compromised

without a finding of doubt as to either collectibility or of liability. Such a

finding was not made. The Department does find that reasonable cause exists for

waiver of the penalties.

RULINGS ON RESPONDENT'S EXCEPTIONS TO THE RECOMMENDED ORDER

Further, the Department adopts and incorporates by reference in this Final

Order, to the extent modified herein, all the exceptions to the Findings of Fact

and the Conclusions of Law as expressed in the Respondent's Exceptions To The

Recommended Order.

CONCLUSION

Therefore, after a thorough review of the entire record in this matter, it is

ORDERED:

(1) That the assessment against Carl R. Glass d/b/a/ Osceola Forge as set forth

in the assessment issued March 5, 1992, in an amount of sales and use tax of

$4,017.76 is sustained;

(2) That the portion of the Conclusion expressed in the Hearing Officer's

Recommended Order which waived the interest which has accrued through October 2,

1991, is rejected. The interest accrued through October 2, 1991, as provided in

the assessment, in the amount of $1,120.10, is sustained.

(3) That the interest of $1.32 per diem, commencing October 3, 1991, which

shall accrue on the tax until paid, as provided in the assessment, is sustained.

(4) That the waiver of the penalties (in the amount of $1,004.52), as expressed

in the Recommended Order, is sustained.

Any party to this Final Order has the right to seek judicial review of this

Final Order as provided in Section 120.68, Florida Statutes, by the filing of a

Notice of Appeal as provided in Rule 9.110, Florida Rules of Appellate

Procedure, with the Clerk of the Department in the Office of General Counsel,

Post Office Box 6668, Tallahassee, Florida 32314-6668 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 Final Order is filed with the Clerk of the

Department.

DONE AND ENTERED in Tallahassee, Leon County, Florida this 6th day of October,

1993.

STATE OF FLORIDA

DEPARTMENT OF REVENUE

________________________

L. H. FUCHS

EXECUTIVE DIRECTOR

I HEREBY CERTIFY that the foregoing FINAL ORDER has been filed in the official

records of the Department of Revenue this 6th day of October, 1993.

Copies furnished to:

Carl R. Glass

2749 North Orange Blossom Trail

Kissimmee, Florida 34741

L.H. Fuchs

Executive Director

Department of Revenue

104 Carlton Building

Tallahassee, Florida 32399-0100

James McAuley

Assistant Attorney General

The Capitol

Tallahassee, Florida 32399-1050

Linda Lettera

General Counsel

Department of Revenue

204 Carlton Building

Tallahassee, Florida 32399-1000

Attachments:

Hearing Officer's Recommended Order

Respondent's Exceptions To Recommended Order

Respondent's Proposed Substituted Order

=================================================================

DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT JANUARY TERM 1995

CARL R. GLASS, NOT FINAL UNTIL THE TIME EXPIRES

d/b/a OSCEOLA FORGE TO FILE REHEARING MOTION, AND,

IF FILED, DISPOSED OF.

Appellant,

CASE NO. 93-2537

v. DOAH CASE NO. 93-249

DEPARTMENT OF REVENUE,

STATE OF FLORIDA,

Appellee.

__________________________/

Opinion filed February 17, 1995

Administrative Appeal from the

Department of Revenue.

Christopher A. Detzel of

Christopher A. Detzel, P.A.,

Maitland, for Appellant.

Robert A. Butterworth, Attorney

General, James Mcauley and

Olivia Klein, Assistant Attorneys

General, Tallahassee, for Appellee.

THOMPSON, J.,

Carl R. Glass d/b/a Osceola Forge ("Glass") appeals an administrative order

of the Department of Revenue ("DOR") which assessed him sales taxes, use taxes

and interest totaling $5,137.86. DOR recommended that the additional penalties

be waived. we have jurisdiction 1/ and we affirm the order of the DOR.

Glass owned and operated a business in Osceola County, On the site of his

business, he erected a two-sided billboard. The billboard was leased to

customers for a monthly fee. The customers could either supply their own labor

and material or contract the work out to third parties to create their

advertising message. Glass did not collect taxes for the lease of the

billboard. When he was audited by DOR, it assessed taxes, interest and

penalties. Glass objected to the assessment and filed a protest letter.

A formal administrative hearing was held before a hearing officer from the

Division of Administrative Hearings pursuant to section 120.57, Florida Statutes

(1993). At the hearing, Glass testified that he called DOR's office and was

told that the lease was a tax exempt transaction and no taxes needed to be

collected. He also presented affidavits from his secretary that she had

contacted DOR's office in Maitland five or six times over a five year period and

they told her that the taxes did not need to be collected for the billboard

because it was a tax exempt transaction. Glass listened in on one conversation

that his secretary had with Audit Supervisor Kathy Spivey of DOR's Titusville

office. He said he heard Ms. Spivey say that no taxes were due on the

transaction described by his secretary. Glass also presented his phone bills to

show that phone calls had been placed from his office to DOR's offices. Glass

testified that he had tried to call DOR's toll free number in Tallahassee and

had not been able to get through because it was busy. Glass did not dispute

that the transactions were taxable or that he would have charged and collected

the taxes had he known they were due, but argued he should not have to pay the

taxes because DOR employees gave him misinformation.

DOR presented testimony that Ms. Spivey had no recollection of the

conversation with Glass or his secretary. She testified that she answered 300

to 400 calls a month. She also testified that any answer she gave to callers

was based upon the facts they provided to her. The hearing officer recommended

that Glass be required to pay the sales and use tax assessment and that the

penalties and interest accrued be waived. He found that Glass presented

insufficient credible evidence to support a claim that DOR made a

misrepresentation of material fact. DOR's Executive Director issued a final

order upholding the assessment of the sales taxes, use taxes, and accrued

interest, and waiving the penalties contained in the assessment.

Glass argues on appeal that because he relied to his detriment upon

misinformation supplied by DOR employees, the doctrine of collateral estoppel

should prevent DOR from assessing the taxes, interest and penalties against him.

See George W. Davis & Sons, Inc. v. Askew, 343 So.2d 1329, 1332 (Fla. 1st DCA

1977)(in some cases estoppel will be upheld against the assessment of back taxes

if the case involves exceptional circumstances). Glass further argues that the

State should be estopped because employees of DOR made misrepresentations as to

material facts that were contrary to a later-asserted position; he relied upon

those representations; and, he made a detrimental change in his position based

upon DOR's representations. State Dept. of Revenue v. Anderson, 403 So.2d 397,

400 (Fla. 1981)(outlining the elements necessary for estoppel to be applied

against a state agency) . we disagree because the leasing of the billboard was

a taxable transaction that required him to pay the taxes mandated by Florida

Statutes and Glass did not establish the elements of estoppel by sufficient

competent evidence. Further, we find Glass did not prove that the state made a

misrepresentation as to a material fact that was contrary to a later-asserted

position. Finally, no exceptional circumstances existed.

Glass was aware this transaction was taxable because he originally paid

taxes, but discontinued these payments after the alleged coversations with DOR

employees. He stipulated before the hearing officer that the taxes were due.

Glass had statutory notice he was liable for the taxes because "sale" is defined

to include the sale or the lease of real property. s 212.031, Fla. Stat.

(1993). Glass owed the money because he was in the business of renting real

propert, i.e., the billboard. The only act that Glass relies upon to prevent

payment of the taxes is the alleged oral representations made by DOR employees.

The hearing officer made the following findings. First, the hearing

officer found that Glass did not present enough evidence to show that DOR made

the representations that no taxes were to be paid. Glass only presented his

self-serving testimony and affidavits from his secretary. Second, the hearing

officer found that Glass provided the initial representation, not DOR,

therefore, estoppel was not appropriate. See T & L Management, Inc. v. Dep't of

Transp., 497 So.2d 685, 687 (Fla. 1st DCA 1986). Even if DOR employees supplied

this misinformation, the statements were statements of law based upon details

supplied by Glass, not mistakes of material fact. Glass testified that he gave

a scenario to the DOR employees and they told him whether the transaction was

taxable. The finding that the state relied upon representations made by Glass

is antithetical to Glass' position, particularly since estoppel is only applied

against the state in exceptional circumstances. Anderson, 403 So.2d at 400-401.

We must accept the hearing officer's findings as correct because appellate

courts are prohibited from substituting their judgment for that of the hearing

officer. Clark v. Dep't of Professional Regulation, Bd. of Medical Examiners,

463 So.2d 328, 330 (Fla. 5th DCA), review denied, 475 So.2d 693 (Fla. 1985).

For these reasons, we affirm DOR's decision

AFFIRMED. GOSHORN, J., concurs.

SHARP, W., J., concurs specially, with opinion.

ENDNOTE

1/ Fla. R. App. P. 9.030(b)(1)(C)

CASE NO. 93-2537

SHARP, W., J., concurring specially.

1 concur in the result of this case. The hearing examiner who was the

"fact-finder" here found: "Petitioner presented insufficient credible evidence

to support his claim that DOR had misrepresented the taxability of the billboard

rental. The list of telephone calls on Petitioner's telephone bills do not

provide sufficient proof to establish that DOR made any representation to the

taxpayer The hearing officer also found that Petitioner did not detrimentally

change his position in reliance on any advice given by the DOR and that any

reliance shown on the "limited tax advice" provided was not reasonable.

In short, the hearing officer found petitioner failed to establish the

defense of estoppel asserted against the DOR. Those findings are supported by

competent and substantial evidence, although contrary evidence was proffered by

Petitioner. Under these circumstances, we must affirm. 1/

ENDNOTE

1/ 120.57(1)(b)10, Fla. Stat. (1993); Department of Transportation, Division of

Administration v. Jirik, 498 So.2d 1253 (Fla. 1986); Pappas v. Department of

Insurance and Treasurer, 568 So.2d 500, 501 (Fla. 3d DCA 1990), rev. denied, 577

So.2d 1328 (Fla. 1991); Heifetz v. Department of Professional Regulation,

Division of Alcoholic Beverages and Tobacco, 475 So.2d 1277, 1281 (Fla. 1 st DCA

1 985); McDonald v. Department of Banking and Finance, 346 So. 2d 569 (Fla. 1st

DCA 1977).