96-002625 Division Of Alcoholic Beverages And Tobacco vs. Futana Village, Inc., D/B/A Spinnaker Status: Closed Recommended Order on Wednesday, March 4, 1998.

Summary: Free drinks served to patrons when cover charge paid or under membership in club constitute a sale and are subject to surcharge tax. Reliance on audit procedures used in earlier audit was reasonable.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 96-2625

)

FUNTANA VILLAGE, INC., d/b/a )

SPINNAKER, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on October 30, 1997, in Panama City, Florida, before the Division

of Administrative Hearings, by its designated Administrative Law

Judge, Diane Cleavinger.

APPEARANCES

For Petitioner: Miguel Oxamendi, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1007

For Respondent: Albert C. Penson, Esquire

Penson and Padgett

701 East Tennessee Street

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

Whether Respondent owes additional alcohol consumption tax.

PRELIMINARY STATEMENT

On April 17, 1996, Petitioner issued a Notice to Show Cause

to Respondent. The Notice to Show Cause alleged that Respondent

had failed to remit, pursuant to Section 561.501, Florida

Statutes, the correct amount of additional alcohol consumption

tax for the period of July 1, 1994, through March 31, 1995. The

Petitioner also sought to revoke, suspend, annul, impose

administrative fines, investigate cost, and late penalties or any

combination thereof, based on Petitioner's allegations.

At the hearing Petitioner offered the testimony of two (2)

witnesses and offered eleven (11) exhibits into evidence.

Respondent offered the testimony of two (2) witnesses and offered

four (4) exhibits into evidence.

At the end of the hearing, Petitioner moved to amend the

Notice to reflect a reduced amount of surcharge liability in the

amount of $16,761.04 additional surcharge tax, $2,549.77 in

penalties and $308.45 in interest. The Respondent did not object

to the motion. The motion is now granted.

After the hearing, Petitioner and Respondent filed proposed

recommended orders on December 12 and December 16, 1997,

respectively. The parties' proposed findings of fact have been

considered and utilized in the preparation of this recommended

order except where the proposed findings of fact were cumulative,

immaterial, irrelevant, or not shown by the evidence.

FINDINGS OF FACT

1. Respondent, Funtana Village, Inc., is the holder of a

valid alcoholic beverage license number 13-00155, Series 4-COP.

The license is for its premises known as the "Spinnaker" located

at 8795 Thomas Drive, Panama City Beach, Florida.

2. The Spinnaker is an entertainment facility that serves

alcoholic beverages. The availability of alcoholic beverages is

part of the entertainment experience at the Spinnaker. The

facility has five live stages and provides other sources of

entertainment. It budgets and spends $500,000 to $600,000 per

year for entertainment, such as musical shows, acts and bands.

3. During the period of May 4, 1995, through December 18,

1995, the Division performed a surcharge tax audit of the

Respondent. The surcharge tax is levied on ounces (volume) of

beer, wine and liquor sold for consumption on the vendor's

premises. See Rule 61A-4.063, Florida Administrative Code.

4. The Division audits vendors' monthly surcharge reports

in order to confirm their accuracy and ensure compliance with

statutory and rule requirements, as well as ensure that the

proper amount of surcharge tax is paid.

5. In general licensed vendors may select from two methods

for reporting the surcharge, the sales method and the purchase

method. Under the sales method, vendors pay the surcharge on the

volume amount of alcoholic beverages sold for consumption on the

licensed premises. Under the purchase method, vendors pay the

surcharge on the volume amount of alcoholic beverages purchased

from that vendor's alcohol distributor.

6. In this case, the audit covered the reporting period of

July 1, 1994, through March 31,1995. Respondent elected the

sales method of payment. The audit was conducted by Marie

Carpenter, an auditor employed by the Petitioner.

7. Prior to the audit involved in this case, the Division

performed an audit of Respondent covering the period of July 1,

1990, through November 30, 1992. Another auditor from the

Division performed the audit. Pursuant to negotiation and

agreement with Petitioner, Respondent performed a self-audit for

the period from December 1, 1992, through June 30, 1994. The

results of the self-audit were accepted by Petitioner. A

settlement was entered into by both parties. The audit in issue

in this action starts with the day immediately following the end

of the self-audit period, July 1, 1994.

8. Importantly, in preparing the reports for the audit

involved in this case, Respondent followed the exact methodology

and percentages used in calculating the tax due under the

previous audit which had resulted in a settlement agreement

between Respondent and Petitioner and was approved by Petitioner.

9. In performing the July 1, 1994, through March 31, 1995,

audit, the auditor did not review the prior self-audit because

each audit should stand on its own merits. She also used

slightly different mathematical methods and percentages to arrive

at the amounts the Division has alleged are due.

10. The purpose of the current audit was to determine

whether accurate records were being kept by the Respondent and

whether accurate deductions of non-surchargeable (or free) drinks

were being calculated by the Respondent.

11. In the December 22, 1995, report on the audit, the

auditor found that the Spinnaker's records as kept were accurate

and traced correctly throughout the audit trail.

12. In the audit the Division calculated the amount of the

surcharge owed by Respondent using the "sales depletion method."

This formula is provided for in the Division's rules.

13. Under the formula, the Division first determined the

Respondent's beginning inventory by volume for July 1, 1994. The

figure used by Respondent was gleaned from the records Respondent

provided to the Division's auditor. However, the evidence showed

that the figures the auditor used for the beginning inventory

were too low. The more accurate figures for the beginning

inventory were the ending inventory figures from the previous

self-audit period, which the Division had accepted and approved

in the earlier settlement agreement. The more accurate figures

should have been used by the Division. Second, the purchases by

volume of alcoholic beverages made by the Respondent during the

audit period were added to the beginning inventory figures to

yield total inventory figures. Third, the ending inventory of

alcoholic beverages on March 31, 1995, was determined. Again,

the purchase information and ending inventory information was

obtained from the records of the Respondent and independently

confirmed from the records of the Respondent's distributor.

Fourth, the inventory figures were subtracted from the total

inventory figures to yield the gross gallonage available for sale

during the audit period. Fifth, adjustments or deductions were

made to the gross gallonage figures to yield the net gallonage

figures to which the surcharge is applied. Some of the

deductions to the gross gallonage figures were deductions for

spillage, cooking and "free" drinks. Finally, the total

surcharge amount was calculated and compared to the amount

already reported and paid to determine if any surcharge was

under-reported or over-reported. In this case, it was found the

Respondent under-reported the surcharge due.

14. The under-reporting was due to the Respondent's

interpretation of the deduction allowed for free drinks. In

essence, the issue was whether drinks given away by Respondent to

customers, who have paid a cover charge to enter the premises or

who have bought a membership in the Spinnaker, are free or sold

because some consideration has been given by the customer for the

drink. The Respondent based its interpretation on the way free

drinks were handled in the settlement agreement it had entered

into earlier. The witnesses confirmed that if cover charges were

not treated as consideration for alcoholic beverages, the amount

claimed by Petitioner to be due would be zero.

15. The Petitioner has had a long-standing policy that a

"cover charge" constitutes consideration for alcoholic beverages.

This policy is contained in the Division's audit manual. The

manual does not provide any leeway to auditors to apply or not to

apply the policy, depending on the facts of the case. This

policy has never been promulgated as a rule. Based on the

policy, Petitioner determined that free drinks served by

Respondent to those paying a cover charge for admission to

Spinnaker were considered "sold" and therefore subject to the

surcharge.

16. The evidence showed that Respondent does not always

charge a cover charge for admission to its facility. Respondent,

during the course of the audit, provided the auditor with a

schedule of its free drink offers for the audit period. The

schedule demonstrated:

- Cover charges were collected even when

there were no free drink specials.

- Respondent provided free drinks without

requiring payment of a cover charge.

- Cover charges were imposed even after free

drink specials ended.

- Cover charges fluctuated with the type of

entertainment and the volume of business.

- Respondent never charged a cover charge

where there was no entertainment.

17. The evidence demonstrated that Respondent tracks the

amount of cover charge needed to be generated to pay for the live

entertainment and has never considered the cover charge as

payment for any alcoholic beverages it sells. In fact, whether

admission to Respondent's premises is charged appears to depend

on two factors, live entertainment and seasonal customer volume.

Cover charges were unrelated to any normal drink sales.

18. Petitioner also disallowed deductions for membership

cards purchased by patrons. Information provided by Respondent

demonstrated that 77.5 percent of all membership cards were given

away and that 22.5 percent were sold. Petitioner projected this

ratio through the audit period and disallowed 22.5 percent of all

alcoholic beverages given away to members because purchase of the

membership cards was construed to be consideration for the drinks

served.

19. The membership cards were provided to patrons to gain

free admission to the facility (exceptions exist for certain

entertainment) and, at the time of the audit, for free parking,

discounts on clothing, one-third discounted drinks and, on

occasion, free drinks. Admittedly, the benefit value of member

"free drinks," when compared with the value of other member

benefits, is little. However, there is some value exchanged for

the price of the membership card and some consideration has

passed. Therefore, the surcharge is appropriately applied by the

Division to the free drinks served to members.

20. In September 1997, the Division at Respondent's request

reviewed the audit and made certain adjustments to its earlier

findings. The audit was adjusted based on a better explanation

from Respondent of its draft beer giveaways and an error in the

original audit. The re-audit performed by the auditor in

September 1997 reduced the amount of the surcharge reported to be

due in December 1995 from a total of $45,673.93 to a total of

$19,619.26 of which $16,761.04 was the surcharge due; $2,549.77

was for penalties and $308.45 was for interest.

21. However, the auditor in the re-audit adjusted for the

draft beer giveaways by applying 20 percent to the free drinks

rung up on the cash register to determine the deduction for free

drinks. The earlier audit used in the settlement agreement

applied the percentage to the total purchases to determine the

deduction for free drinks. The method and procedures for

establishing the percent of inventory which constituted free

drinks in the earlier audit were standard auditing processes.

The evidence did not support a change in that process.

Therefore, the giveaway percentage should have been applied as it

was in the audit for the settlement agreement. That method was

approved by the Division and should have been followed for the

purpose of consistency in the audit at issue here.

22. The penalty was predicated on a prior action involving

these two parties; however, the Consent Order entered in that

prior action provided that the initial action would not be

considered as a basis for imposing a penalty in any subsequent

proceeding involving these issues. Therefore, the prior action

cannot be used to increase the penalty, if any, imposed on

Petitioner. Moreover, the under-reporting of the surcharge by

Respondent was due to its legitimate reliance on the methodology

and percentages used in the settlement agreement between it and

Petitioner. Reliance on those provisions was reasonable and

should not cause them to be penalized. Therefore, no penalty

should be imposed on Respondent.

23. Other than as noted above, the Division’s procedures

and methodologies used in the audit at issue here were

reasonable.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. Section 120.57(1), Florida Statutes.

25. Section 561.501, Florida Statutes, imposes a surcharge

on beer, wine and liquor “. . . sold at retail for consumption on

premises licensed by the division as an alcoholic beverage

vendor.”

26. Section 561.01(9), Florida Statutes, defines the term

“sale” as follows:

Any transfer of an alcoholic beverage for

consideration, any gift of an alcoholic

beverage in connection with, or as a part of,

a transfer of property other than an

alcoholic beverage for a consideration, or

the serving of an alcoholic beverage by a

club licensed under the Beverage Law.

27. Chapter 61A-4, Florida Administrative Code,

provides the auditing criteria which govern audits such as

the one at issue here. Rule 61A-4.063(4)(c), Florida

Administrative Code, provides in part as follows:

If the vendor chooses the sales method, the

vendor will bear the burden of proof that the

method used accurately reflects actual

sales. . . .

28. Rule 61A-4.063, Florida Administrative Code, sets forth

the sales depletion formula used by the Division in this audit.

Rule 61A-4.063(4)(c), Florida Administrative Code, further

states, in part, as follows:

Adjustments made to this formula in favor of

the licensee will be based on factual,

substantial evidence. The results of the

formula will represent sales transactions as

defined herein and in Section 561.01(9),

Florida Statutes, for the period under

review.

29. The Division does not provide any further definition of

the term “sale” by rule. However, Petitioner has implemented the

statute through a standard in its auditing practices which is

contained in its auditing manual. This audit standard defines a

cover charge as consideration for alcoholic beverages, thereby

constituting a "sale" within the meaning of Section 561.01(9),

Florida Statutes. The standard is generally applied and the

auditor has no discretion to not follow the standard based on the

individual facts of a business. The Division’s audit manual was

not introduced into evidence.

30. This sta ndard auditing procedure of Petitioner clearly

constitutes an agency statement of general applicability which

implements a statute.

31. In Department of Revenue v. Vanjaria Enterprises, Inc. ,

675 So. 2d 552 (Fla. 5th DCA 1996), the court found that the

effect of the agency's tax assessment procedure was a rule, in

that it was a statement of general applicability that implements

or interprets law or policy, creating an entitlement for the

agency to collect taxes and adversely impacting the taxpayer.

The court also found that the auditors were not entitled to

exercise any discretion outside the prescribed standard. Id. At

255. See also Department of Transportation v. Blackhawk Quarry

Co. , 528 So. 2d 447, 450 (Fla. 5th DCA 1988) reh'g denied 536 So.

2d 243.

32. As stated by the court in Vanjaria , citing Department

of Natural Resources v. Wingfield Development Co ., 581 So. 2d

193, 196 (Fla. 1st DCA 1991):

A rule is defined in section 120.52(16),

Florida Statutes (1987), as a "statement of

general applicability that implements,

interprets, or prescribes law or policy or

describes the organization, procedure, or

practice requirements of an agency and

includes any form which imposes any

requirement." An unpromulgated agency rule

constitutes an invalid exercise of delegated

legislative authority and, therefore, is

unenforceable. Wingfield , 581 So. 2d at 196.

33. Not all agency implementations of a statute are

required to be promulgated as rules. In this case, the statute

defines the term “sale.” Statutes do dictate agency policy and

govern agency action with or without implementing rules. See

Department of Corrections v. McCain Sales of Florida, Inc. , 400

So. 2d 1301 (Fla. 1st DCA 1981); Home Health Professional

Services, Inc. v. Department of Health and Rehabilitative

Services , 463 So. 2d 345 (Fla. 1st DCA 1985); Hill v. State

Department of Natural Resources , 7 F.A.L.R. 5236 (Fla. Div. Of

Admin. Hearings 1985); and Joshua Water Control District v.

Department of Natural Resources , 11 Fla. Supp. 2d 182 (Fla. Div.

of Admin. Hearings 1985). In this case, any further definition

by the agency would only constitute a listing of various factual

examples which the Division considers to be a sale. Such a

listing of examples is not required under Chapter 120, Florida

Statutes. However, absent a rule, the agency’s implementation of

a statute is subject to challenge based on the facts of each case

and may not be applied where the facts do not fall within the

language of the statute being implemented.

34. In this case, there is no rule implementing the

statute. Therefore, whether the Respondent owes additional

surcharge tax depends on the application of the statutory

definition of the term “sale” in Section 561.01(9), Florida

Statutes, to the imposition of a cover charge or sale of a

membership by Respondent.

35. In Florida, there is little case law directly on the

construction of the term “sale” in relation to the dispensing of

alcoholic beverages. In Department of Business Regulation v.

Cost Plus Imports of Tampa Bay, Inc. , 513 So. 2d 764 (Fla. 2d DCA

1987), the Second District Court of Appeal held that a

transaction in which alcoholic beverages were given to persons

renting a limousine without additional charge was a sale of

alcoholic beverages under Section 561.01(9), Florida Statutes.

The patrons of the limousine company had to pay to receive the

limousine service which in turn entitled them to receive an

alcoholic beverage. In this case, the patrons of the Spinnaker

must, at certain times, pay to enter the premises for membership

or for entertainment, which in turn entitles them to receive an

alcoholic beverage. However, the Spinnaker’s patrons did not

always have to a pay cover charge to receive free alcoholic

beverages.

36. In making its decision, the court in Cost Plus Imports

cited Commonwealth v. Backa , 310 A.2d 355 (Penn. 1973), New York

State Liquor Authority v. Fluffy’s Pancake House , 409 N.Y.S.2d 20

(N.Y. 1978) and Winter v. Pratt , 189 S.E.2d 7 (S.C. 1972) as

persuasive authority for the court’s application of Section

561.01(9), Florida Statutes.

37. In Commonwealth v. Backa , the defendants were charged

with selling alcoholic beverages without a valid license as

required under Pennsylvania law. The Defendants owned and

operated a business known as Alpine Ice Chalet. A sign outside

the entrance stated, “Swimming, dancing and free beer, $3.00.”

Patrons of the Chalet, upon tendering the $3.00 admission fee,

were entitled to swim, dance and receive beer dispensed from a

make-shift bar. The lower court concluded that such activity did

not constitute evidence of a sale of alcoholic beverages. The

Pennsylvania Supreme Court rejected the ruling of the lower court

and stated:

The reasoning by the trial court assumes that

the beer was in fact free because the sign

said so. The court thus begged the very

question which was before it for

consideration, that question being: though

no specific consideration is set forth and

though the beer was stated to be free, was

there in fact included in the admission price

a payment for the beer and was the method

here employed of supplying beer to patrons

for their consumption on the premises a sham

and subterfuge for which was in fact a

sale? . . .

If inducement is the basis of the lower

court’s reasoning, then free beer or free

liquor of any kind for that matter, under the

same circumstances, can be dispensed without

a license by any bar, lounge, hotel or

restaurant as an inducement to a patron’s

availing himself of its facilities. To allow

this situation to flourish would be to invite

other confusion and contradiction of the

legislative purpose of the license

requirement.

38. In New York State Liquor Authority v. Fluffy’s

Pancake House , a restaurant which was not licensed to sell

alcoholic beverages featured complimentary wine with its

meals. The court held that a patron who receives

complimentary wine with dinner is, by the purchase of the

meal, giving consideration for the complimentary beverage

served. Id. at 21. The Court concluded that the patron who

receives such complimentary wine with a meal was giving

consideration in the form of payment for the meal.

39. Similarly in New York State Liquor Authority v.

Sutton , 403 N.Y.S.2d 443 (N.Y. 1978), the question before

the court was whether an incorporated not-for-profit social

club could charge nightly dues to its members and distribute

free liquor to its members without a license to sell

alcoholic beverages. For the nightly dues fee ranging from

$6.00 to $10.00 per person, the club provided dancing,

backgammon, and free alcoholic beverages. The position of

the social club was that the alcoholic beverages were not

sold but were part of the nightly entertainment. The court

concluded that the Respondent was engaging in the unlicensed

sale of alcoholic beverages on its premises. The court

reasoned:

Corporate respondent is engaged in the sale

of liquor on the premises as if money was

being exchanged for liquor at the bar instead

of the liquor and entertainment at the door.

A “sale” by any other name would still smell

from the alcoholic beverages involved. It

must be held that law, logic and as a matter

of practicality that alcoholic beverages are

being sold to all who desire them for

monetary consideration as part of the price

of admission to the club. If any contrary

interpretation were adopted and if this

obvious subterfuge were afforded legitimacy

there would be little need for alcoholic

beverage licensing provisions of any type

since such provisions and attendant controls

could readily be bypassed.

40. In both Fluffy’s Pancake House and Sutton , the New York

courts applied the definition of sale under New York’s Alcoholic

Beverage Control Law. The Control Law defines sale as “any

transfer, exchange or barter in any manner or by any means

whatsoever for a consideration.” While the New York definition

is not the same as Florida’s definition of the term sale, it is

comparable.

41. In Winter v. Pratt , a lounge known as the Pirate Cove

was licensed to sell beer and wine only. The lounge offered its

patrons alcoholic beverages that it was not licensed to sell.

The unlicensed drinks were free, but the patron had to pay a

charge for the set-up. The drinks were served in appreciation

for the customer’s patronage. The lounge argued that the free

drinks were a gift and not a sale. The court rejected the

lounge’s argument holding the transaction to be a sale for which

the consideration was the set-up fee paid to the waitress.

42. Finally, the meaning of the term “sale” as used in

connection with Florida’s alcoholic beverages law was addressed

by the Florida Supreme Court in State v. Livingston , 30 So. 2d

740 (Fla. 1947). In Livingston , the Florida Supreme Court

addressed the issue of the constitutionality of Section

561.34(11), Florida Statutes (1947), under Article XIX, Section

I, of the Florida Constitution. The Court was dealing with the

construction of the term "sale" as it related to Section I, which

provided that each County had the right to decide whether

intoxicating liquors could be sold in that County.

43. In Livingston, the Court was concerned with the part of

Section 561.34(11), Florida Statutes (1947), which permitted bona

fide social clubs to serve or distribute to members or non-

resident guests alcoholic beverages. Such activity was not to be

deemed a sale under the statute. In construing the term “sale,”

the Supreme Court considered the Webster Dictionary definition of

"sale" which is “the contract whereby the absolute or general

ownership of property is transferred from one person to another

for a price or sum of money, or loosely, for any consideration."

In addressing the transactions by a social club, the Supreme

Court stated:

Regardless of how the statute may describe

the transaction, the serving of liquor by a

bona fide social club is a ‘sale’ within the

meaning and definition of the Constitution,

and the manner of serving, paying for or

other ways to cloak its true meaning cannot

in anywise change or alter the transaction.

44. In this case, the provisions of Section 561.01(9),

Florida Statutes, define the transfer of any alcoholic beverage

or the gift of any alcoholic beverages when given with the

transfer of other property as a sale. The transfer or giving of

alcoholic beverages by Petitioner to its patrons when it charges

a cover charge or has charged for a membership clearly falls

within that statutory definition. The serving of free alcohol

after payment of a cover charge or for a membership is either a

specific transfer for consideration, albeit small, or the serving

of free alcohol is a gift in connection with the transfer of

Petitioner’s property, admission to its facility, a membership or

entertainment. Under either view, the transaction is a sale and

subject to the surcharge.

45. Any penalty associated with underpayment may be waived

or compromised if the non-compliance with payment was due to

“reasonable cause and not to willful negligence, willful neglect

or fraud.” Section 561.501(3)(a), Florida Statutes. In this

case, Petitioner relied on the prior settlement agreement in

preparing its surcharge reports. That reliance was reasonable.

46. Additionally, Petitioner's auditor confirmed that

Respondent accurately reported and remitted the surcharge and

that the accuracy was only impacted as a result of Petitioner's

unpublished interpretation of a cover charge as consideration for

alcoholic beverages.

47. The record clearly reflects that Petitioner is not

entitled to use prior actions involving the settlement agreement

and Respondent as a basis for imposing a penalty in this

proceeding. However, the settlement agreement provides that the

underpayment which it addresses could not be used against

Respondent in any future actions by the division. Therefore, the

earlier under-payment cannot form the basis for imposition of a

penalty against Respondent.

48. In this case, any non-compliance by Respondent in this

case was based on reasonable cause and in part was due to the

earlier settlement agreement. Given these facts, the penalty

should be waived.

RECOMMENDATION

Based u pon the findings of fact and conclusions of law, it

is

RECOMMENDED:

That the assessment of surcharge principal and interest by

Petitioner against Respondent be re-calculated as outlined above

and any penalty be waived.

DONE AND ENTERED this 4th day of March, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee , Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of March , 1998.

COPIES FURNISHED:

Albert C. Penson, Esquire

Penson and Padgett

Post Office Box 1327

Tallahassee, Florida 32302

Miguel Oxamendi, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Richard Boyd, Director

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Lynda L. Goodgame, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

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.