97-000323RP American Insurance Association vs. Department Of Revenue
 Status: Closed
DOAH Final Order on Friday, August 29, 1997.


View Dockets  
Summary: Proposed rules and forms said WC admin assmnt is special purpose obligation, excluded from retaliatory tax but deduct from premium tax. Valid.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8AMERICAN INSURANCE ASSOCIATION , )

12)

13Petitioner, )

15)

16vs. ) Case No. 97-0323RP

21)

22DEPARTMENT OF REVENUE , )

26)

27Respondent. )

29___________________________________)

30FLORIDA INSURANCE COUNCIL , )

34)

35Petitioner, )

37)

38vs. ) Case No. 97-0588RP

43)

44DEPARTMENT OF REVENUE , )

48)

49Respondent. )

51___________________________________)

52ALLIANCE OF AMERICAN INSURERS , )

57)

58Petitioner, )

60)

61vs. ) Case No. 97-0632RP

66)

67DEPARTMENT OF REVENUE , )

71)

72Respondent. )

74___________________________________)

75LIBERTY MUTUAL INSURANCE COMPANY , )

80)

81Petitioner, )

83)

84vs. ) Case No. 97-0655RP

89)

90DEPARTMENT OF REVENUE , )

94)

95Respondent. )

97___________________________________)

98FINAL ORDER

100On July 1, 1997, a formal administrative hearing was held in

111this case in Tallahassee, Florida, before J. Lawrence Johnston,

120Administrative Law Judge, Division of Administrative Hearings.

127APPEARANCES

128For Petitioner Douglas A. Mang, Esquire

134Liberty Mutual Paul A. Shapiro, Esquire

140Insurance Company : Mang Law Firm, P.A.

147660 East Jefferson Street

151Tallahassee, Florida 32301

154For Petitioner Richard E. Coates, Esquire

160American Insurance Paul Ezatoff, Esquire

165Association: Katz, Kutter, Haigler, Alderman,

170Marks, Bryant & Yon, P.A.

175106 East College Avenue

179Tallahassee, Florida 32301

182For Petitioner James C. Massie, Esquire

188Alliance of Massie & Scott, P.A.

194American Insurers: Barnett Bank Building

199315 South Calhoun Street

203Tallahassee, Florida 32301

206For Respondent James F. McAuley, Esquire

212State of Florida Elizabeth Bradshaw, Esquire

218Department of Assistant Attorneys General

223Revenue: Department of Legal Affairs

228The Capitol, Tax Section

232Tallahassee, Florida 32399-1050

235STATEMENT OF THE ISSUES

239The issues in these proposed rule challenge proceedings are

248whether the Department of Revenue’s Proposed Rules 12B-8.003 and

25712B-8.016 and Proposed Forms DR-907 and DR-908 constitute invalid

266exercises of delegated legislative authority.

271Essentially, the proposed rules and forms respond to the

280decision in Department of Revenue vs. Zurich Insurance Company ,

289667 So. 2d 365 (Fla. 1st DCA 1995)( Zurich ), and state: (1) that

303workers’ compensation administrative assessments (WCAA) imposed

309under Section 440.51(5), Florida Statutes (1995), are “special

317purpose obligations or assessments imposed in connection with”

325workers’ compensation insurance; (2) that the retaliatory tax

333under Section 624.5091, Florida Statutes (1995), does not apply

342as to WCAA; (3) that WCAA are treated as deductions from the

354insurance premium tax imposed under Section 624.509, Florida

362Statutes (1995), as provided in subsection (7) of that statute,

372and are not added back in, for purposes of calculating

382retaliatory taxes.

384The positions taken in the various proposed rule challenges

393include: (1) Zurich was wrongly decided or no longer

402controlling, and WCAA are not “special purpose obligations or

411assessments imposed in connection with” workers’ compensation

418insurance; (2) as a matter of statutory interpretation, even if

428WCAA are “special purpose obligations or assessments imposed in

437connection with” workers’ compensation insurance, WCAA are not to

446be deducted from insurance premium taxes, or are to be added

457back, for purposes of calculating retaliatory taxes; (3) if not

467so interpreted, the proposed rules and forms violate the equal

477protection clause of the United States Constitution; (4) the

486published notice of the proposed rules and forms was fatally

496defective; and (5) the proposed rules and forms cannot be applied

507retroactively.

508PRELIMINARY STATEMENT

510Between January 27 and February 11, 1997, the American

519Insurance Association (AIA), the Alliance of American Insurers

527(AAI), the Florida Insurance Council (FIC), and Liberty Mutual

536Insurance Company (LMIC) each filed separate petitions

543challenging the Department of Revenue’s Proposed Rule 12-

5518.003(1), Florida Administrative Code, together with Proposed

558Forms DR-907 and DR-908 and instructions, and Proposed Rule 12B-

5688.016, Florida Administrative Code. The proposed rule-challenge

575petitions were given the following Division of Administrative

583Hearings (DOAH) Case Numbers : 97-0323RP; 97-0588RP; 97-0632RP;

591and 97-633RP. The cases were consolidated for further

599proceedings.

600On March 19, 1997, leave was granted for AIA to file an

612Amended Petition to Determine Invalidity of Proposed Rules.

620On May 28, 1997, FIC filed a Notice of Voluntary Dismissal.

631The parties filed a Prehearing Stipulation of Facts on

640June 13, 1997, asserting that there were no disputed issues of

651fact remaining to be determined in this proceeding. Nonetheless,

660final hearing was convened as scheduled on July 1, 1997, to

671permit legal argument and amplification of the parties’

679positions.

680Two requests for official recognition filed by AIA were

689granted at final hearing. Neither AIA, AAI, nor LMIC called a

700witness at final hearing; the Department of Revenue (DOR) called

710one witness—its employee, Paul Munyon.

715The DOR ordered the preparation of a transcript of the final

726hearing, which was filed on July 14, 1997. The parties requested

737and were given until August 8, 1997 , in which to file proposed

749final orders.

751All parties timely filed proposed final orders. LMIC also

760filed an alternative proposed final order and a memorandum in

770support. The DOR amended its proposed final order and also filed

781a supporting memorandum of law and a Request for Judicial Notice

792of a state circuit court final judgment, which was not opposed

803and is granted.

806The findings of fact in this Final Order included those

816found in the Prehearing Stipulation of Facts, plus additional

825findings regarding legislative history based on AIA’s subsequent

833requests for official recognition.

837STIPULATED FINDINGS OF FACT

8411 . Section 624.5091, Florida Statutes 1 is Florida’s

850retaliatory tax statute. Section 624.5091 states in part:

858624.5091 Retaliatory provisions, insurers .--

863(1 ) When by or pursuant to the laws of any other state

876or foreign country any taxes, licenses, and other fees,

885in the aggregate , and any fines, penalties, deposit

893requirements, or other material obligations,

898prohibitions, or restrictions are or would be imposed

906upon Florida insurers or upon the agents or

914representatives of such insurers, which are in excess

922of such taxes, licenses, and other fees, in the

931aggregate , or which are in excess of the fines,

940penalties, deposit requirements, or other obligations,

946prohibitions, or restrictions directly imposed upon

952similar insurers, or upon the agents or representatives

960of such insurers, of such other state or country under

970the statutes of this state, so long as such laws of

981such other state or country continue in force or are so

992applied, the same taxes, licenses, and other fees, in

1001the aggregate, or fines, penalties, deposit

1007requirements, or other material obligations,

1012prohibitions, or restrictions of whatever kind shall be

1020imposed by the Department of Revenue upon the insurers,

1029or upon the agents or representatives of such insurers,

1038of such other state or country doing business or

1047seeking to do business in this state. In determining

1056the taxes to be imposed under this section, 80 percent

1066of the credit provided by s. 634.509(5), as limited by

1076s. 624.509(6) and further determined by s. 624.509(7),

1084shall not be taken into consideration.

1090* * *

1093(3 ) This section does not apply as to personal income

1104taxes, nor as to sales or use taxes, nor as to ad

1116valorem taxes on real or personal property, nor as to

1126reimbursement premiums paid to the Florida Hurricane

1133Catastrophe Fund, nor as to emergency assessments paid

1141to the Florida Hurricane Catastrophe Fund, nor as to

1150special purpose obligations or assessments imposed in

1157connection with particular kinds of insurance other

1164than property insurance , except that deductions, from

1171premium taxes or other taxes otherwise payable, allowed

1179on account of real estate or personal property taxes

1188paid shall be taken into consideration by the

1196department in determining the propriety and extent of 2

1205retaliatory action under this section (emphasis

1211added).

12122 . Section 624.509, Florida Statutes, is Florida’s premium

1221tax statute. Section 624.509 states in part:

1228624.509 Premium tax; rate and computation .--

1235(1) In addition to the license taxes provided for in

1245this chapter, each insurer shall also annually, and on

1254or before March 1 in each year, except as to wet marine

1266and transportation insurance taxed under s. 624.510,

1273pay to the Department of Revenue a tax on insurance

1283premiums, risk premiums for title insurance, or

1290assessments, including membership fees and policy fees

1297and gross deposits received from subscribers to

1304reciprocal or interinsurance agreements, and on annuity

1311premiums or considerations, received during the

1317preceding calendar year, the amounts thereof to be

1325determined as set forth in this section . . .

1335* * *

1338(7) Credits and deductions against the tax imposed by

1347this section shall be taken in the following order:

1356deductions for assessments made pursuant to s. 440.51;

1364. . . .

13683 . Respondent, Department of Revenue, is the agency

1377presently charged with the administration of the tax law in the

1388State of Florida, including those provisions set forth in Section

1398624.509 (Florida’s premium tax) and Section 624.5091 (Florida’s

1406retaliatory tax).

14084 . Section 624.605(1)(c), Florida Statutes states:

1415(1) “Casualty Insurance” includes:

1419* * *

1422(c) Workers’ compensation and employer’s liability .

1429Insurance of the obligations accepted by, imposed upon,

1437or assumed by employers under law for death,

1445disablement, or injury of employees.

14505 . Section 440.51 establishes Florida’s Workers’

1457Compensation Administrative Assessment. Section 440.51 states in

1464part:

1465440.51 Expenses of administration .--

1470(1) The division shall estimate annually in advance the

1479amounts necessary for the administration of this

1486chapter, in the following manner.

1491* * *

1494(b) The total expenses of administration shall be

1502prorated among the insurance companies writing

1508compensation insurance in the state and self-insurers.

1515The net premiums collected by the companies and the

1524amount of premiums a self-insurer would have to pay if

1534insured are the basis for computing the amount to be

1544assessed . . . .

1549* * *

1552(5) Any amount so assessed against and paid by an

1562insurance carrier, self-insurer authorized pursuant to

1568s. 440.57, or commercial self-insurance fund authorized

1575under ss . 624.460-624.488 shall be allowed as a

1584deduction against the amount of any other tax levied by

1594the state upon the premiums, assessments, or deposits

1602for workers’ compensation insurance on contracts or

1609policies of said insurance carrier, self-insurer, or

1616commercial self-insurance fund.

16196 . The Department of Insurance administered Florida’s

1627retaliatory tax provision from 1959 to 1988. (The Department of

1637Insurance forms are attached to the Prehearing Stipulation of

1646Facts as Exhibit “A”.)

16507 . The legislature transferred the administration of

1658Section 624.5091 to the Department of Revenue in 1989. 3

16688 . The Department of Revenue subsequently drafted Rule

167712B-8.016(3)(a )4., Florida Administrative Code, which was adopted

1685March 25, 1990.

16889 . 12B-8.016(3)(a )4, Florida Administrative Code stated:

169612B-8.016 Retaliatory Provisions.

1699* * *

1702(3)(a) Other items which shall be included in the

1711retaliatory calculations are:

1714* * *

17174 . The workers compensat ion administrative

1724assessment imposed by s. 440.51, Fla. Stat.,

1731as well as comparable assessments in other

1738states.

173910 . Zurich Insurance Company (Zurich), a New York domiciled

1749company, filed a petition to challenge Rule 12B-8.016(3)(a )4. on

1759September 13, 1994. 4

176311 . The DOAH Hearing Officer issued a Final Order on

1774December 13, 1994. (A copy of the Final Order is attached to the

1787Prehearing Stipulation of Facts as Exhibit “B”.)

179412 . The Department of Revenue appealed the Hearing

1803Officer’s Final Order to the First District Court of Appeal

1813(First DCA).

181513 . The First DCA affirmed the Hearing Officer’s ruling in

1826Department of Revenue vs. Zurich Insurance Company , 667 So. 2d

1836365 (Fla. 1st DCA 1995).

184114 . After the First DCA decision in Department of Revenue

1852vs. Zurich Insurance Company , the Department of Revenue proposed

1861Rules 12B-8.003 and 12B-8.016, Florida Administrative Code.

186815 . The Department began its internal rule making process

1878May 30, 1996.

188116 . The Department held two rule development workshops

1890where language addressing the disputed rule was discussed. The

1899first was held July 16, 1996, with the language and notice of the

1912workshop published in Volume 22, Number 26, June 28, 1996,

1922Florida Administrative Weekly . The second was held November 15,

19321996, with the language and notice of that workshop published in

1943Volume 22, Number 44, November 1, 1996, Florida Administrative

1952Weekly . Representatives of Petitioners attended these workshops.

1960(Drafts of the proposed rules as discussed during the workshops

1970are attached to the Prehearing Stipulation of Facts as

1979Exhibit “C”.)

198117 . The proposed rules, as challenged, were published on

1991December 27, 1996, in Volume 22, Number 52, Florida

2000Administrative Weekly . Additionally, Proposed Rule 12B-8.003 was

2008also published with notice of change on February 21, 1997, in

2019Volume 23, Number 8, Florida Administrative Weekly .

202718 . Section 120.54(3)(a )1., Florida Statutes, states:

2035(3) ADOPTION PROCEDURES .--

2039(a) Notices .--

20421. Prior to the adoption, amendment, or repeal of any

2052rule other than an emergency rule, an agency, upon

2061approval of the agency head, shall give notice of its

2071intended action, setting forth a short, plain

2078explanation of the purpose and effect of the proposed

2087action ; the full text of the proposed rule or amendment

2097and a summary thereof; a reference to the specific

2106rulemaking authority pursuant to which the rule is

2114adopted; and a reference to the section or subsection

2123of the Florida Statutes or the Laws of Florida being

2133implemented, interpreted, or made specific. The notice

2140shall include a summary of the agency’s statement of

2149the estimated regulatory costs, if one has been

2157prepared, based on the factors set forth in

2165s. 120.541(2), and a statement that any person who

2174wishes to provide the agency with information regarding

2182the statement of estimated regulatory costs, or to

2190provide a proposal for a lower cost regulatory

2198alternative as provided by s. 120.541(1), must do so in

2208writing within 21 days after publication of the notice.

2217The notice must state the procedure for requesting a

2226public hearing on the proposed rule (emphasis added).

223420 . The Department of Revenue published the following

2243statement of purpose and effect of proposed amendments to Rule

2253Chapter 12B-8, Florida Administrative Code , in Volume 22, Number

226252, December 27, 1996, Florida Administrative Weekly:

2269PURPOSE AND EFFECT : The proposed amendments to Rule

2278Chapter 12B-8, F.A.C., are needed to implement various

2286recent court decisions, delete obsolete language ,

2292provide definitional language concerning “ multiperil

2298insurance,” and clarify which insurers are subject to

2307the tax imposed under s. 624.509, F.S., and how they

2317are to calculate taxable premiums and allowable credits

2325(emphasis added).

232721 . The Departm ent of Revenue published the following

2337summary of the proposed changes to Rule Chapter 12B-8, Florida

2347Administrative Code, in Volume 22, Number 52, December 27, 1996,

2357Florida Administrative Weekly :

2361SUMMARY: Rule 12B-8.001, 8.002, and 8.016, F.A.C., are

2369amended in order to conform the rule to recent court

2379decisions. Additionally, Rules 12B-8.001, 8.006, 8.015

2385and 8.016, F.A.C., are revised to incorporate statutory

2393or procedural changes made since the last rule revision

2402and to delete obsolete language within these rules.

2410Also, references made to Department forms in Rule 12B-

24198.003, F.A.C., are updated to reflect the current

2427version. Finally, Rule 12B-8.006, F.A.C., is amended

2434to incorporate a clarifying definition.

243922 . The Notice of Change to Proposed Rule 12B-8.003, as

2450published in, Volume 23, Number 8, February 21, 1997 , Florida

2460Administrative Weekly states in pertinent part:

2466(1 ) Tax returns and reports shall be made by insurers

2477on forms prescribed by the Department. The Department

2485prescribes Form DR-907, Florida Department of Revenue

2492Insurance Premium Quarterly Tax Return, dated January

24991997 --May 1993-- and Form DR-908, Florida Department

2507of Revenue Insurance Premium Quarterly Tax Return,

2514dated January 1997 --January 1993--, and accompanying

2521instructions as used for the purpose of this chapter

2530and hereby incorporates these forms by reference.

2537(Copies of Proposed Rule 12B-8.003 as originally proposed,

2545Department of Revenue 1995 insurance premium tax instructions and

2554forms, and Department of Revenue 1997 insurance premium tax

2563instructions and forms are attached to the Prehearing Stipulation

2572of Facts as composite Exhibit “D”.)

257823 . Schedule I of proposed form DR 908 (revised 1/97) would

2590be used to calculate a foreign or domestic insurer’s total

2600premium tax due (before credits).

260524 . Schedule VI of proposed form DR 908 (revised 1/97)

2616would be used by foreign and domestic workers’ compensation

2625insurers to calculate a credit that would be received against the

2636foreign or domestic insurer’s premium tax for having paid the

2646workers’ compensation administrative assessment.

265025 . Schedule III of proposed form DR 908 (revised 1/97)

2661would be used to calculate all of the credits against a foreign

2673or domestic insurer’s premium tax liability. Line 1 of that

2683schedule is for the workers’ compensation administrative

2690assessment credit from Schedule VI. If a foreign or domestic

2700insurer has paid the workers’ compensation administrative

2707assessment, Schedule III provides for a credit against its

2716premium tax for that payment.

272126 . All the information from the various schedules would be

2732brought forward to proposed form DR 908. Line 2 of proposed form

2744DR 908 would provide for the total credits from Schedule III

2755(including credit for the workers’ compensation administrative

2762assessment) to be subtracted from the foreign or domestic

2771insurer’s total premium tax due.

277627 . Sc hedule XIV of proposed form DR 908 (revised 1/97)

2788would be entitled “Retaliatory Tax Computation.” This schedule

2796would be completed by foreign insurers to determine retaliatory

2805tax due under Section 624.5091.

281028 . Schedule XIV of proposed form DR 908 (revised 1/97)

2821does not include a line for Florida’s workers’ compensation

2830assessment (or any other state’s workers’ compensation

2837assessment) nor any provision for an add back of the credit for

2849the workers’ compensation administrative assessment in the

2856calculation of an insurer’s retaliatory tax.

286229 . Proposed forms DR 907 and DR 908 (revised 1/97) would

2874not be retroactive and would operate prospectively from

2882January 1, 1997.

288530 . Proposed Rule 12B-8.016 states in pertinent part:

2894(3)(b) Special purpose obligations as used in this rule

2903means those obligations or assessments the funds from

2911which are for the benefit of certain parties, and not

2921for the benefit of all citizens generally. Generally,

2929such obligations will not materially involve general

2936tax revenues, appropriated funds or state monies.

29431. Using this definition, the following Florida

2950assessments, as they are currently described in

2957the Florida Statutes, would be considered special

2964purpose obligations:

2966a. Workers’ compensation administrative

2970assessment.

2971b. Workers’ compensation special assessment.

2976c. Florida Life and Health Guarantee Association

2983assessment.

2984d. Florida Insurance Guarantee Association

2989assessment.

2990e. Florida Comprehensive Health Association

2995assessment.

2996f. State Fire Marshal regulatory assessment.

3002g. State Fire Marshal college surcharge.

30082. Since s. 624.5091(3), F.S., provides that

3015special purpose obligations or assessments imposed

3021in connection with particular kinds of insurance

3028other than property insurance are to be excluded

3036from the retaliatory tax calculation, only State

3043Fire marshal regulatory assessment, the State Fire

3050Marshal college surcharge, and the portion of the

3058Florida Insurance Guaranteed Association

3062assessment that was imposed upon the insurer’s

3069property insurance policies, can be included in

3076the retaliatory tax calculation. The workers’

3082compensation fund’s administrative and special

3087purpose assessments, and the Florida Life and

3094Health Guarantee Association Special assessment

3099cannot be included in the retaliatory tax

3106calculation since the assessments are imposed on 5

3114insurance other than property insurance. . . .

312231 . American Insurance Association (AIA), Florid a Insurance

3131Council (FIC), Liberty Mutual Insurance Company (LMIC), and

3139Alliance of American Insurers (AAI) filed petitions to challenge

3148the validity of certain provisions of the above proposed rules.

315832 . The rule challenges of each of the Petitioners were

3169consolidated for final hearing in a February 26, 1997 Order by

3180Administrative Law Judge, J. Lawrence Johnston.

318633 . FIC voluntarily dismissed its petition challenging the

3195above proposed rules on May 27, 1997.

320234 . AIA and AAI are national trade organizations. Some of

3213the members of each of AIA and AAI are foreign and domestic

3225insurers licensed and authorized to transact property and

3233casualty insurance in the State of Florida pursuant to the

3243Florida Insurance Code. Some of their members transact, among

3252other insurance coverages, workers’ compensation insurance in the

3260State of Florida.

326335 . LMIC is an insurance company domiciled in the state of

3275Massachusetts that writes workers’ compensation insurance in the

3283State of Florida.

328636 . LMIC, AIA and AAI, or some of their members, as foreign

3299insurers doing business in the State of Florida, are subject to

3310the provisions of Florida’s retaliatory tax, Section 624.5091 and

3319Florida’s workers’ compensation laws.

332337 . LMIC, AIA and AAI, or some of their members, pay

3335workers’ compensation administrative assessments.

333938 . LMIC’s, AIA’s, and AAI’s interests, or the interests of

3350some of their members, are substantially affected by the

3359Department of Revenue’s proposed rules 12B-8.003 and 12B-8.016.

3367ADDITIONAL FINDINGS OF FACT

337139. House of Representatives Insurance Committee Final

3378Staff Analysis of CS/CS/CS/HB 336 (1989) contains the following

3387example in Section II.D:

3391D. FISCAL COMMENTS:

3394The following is an example of an out-of-state Property &

3404Casualty Company’s tax calculations under the provisions

3411of this bill (assuming the company’s state of domicile

3420imposes a 2.0% rate).

3424Total Premiums Written in Florida $1,000,000

3432Premium Tax Rate x 1.75%

3437Gross Premium Tax $17,500

3442Credit for Municipal Taxes ($5,000)

3448Credit for Workers’ Comp. Assessments ($5,000)

3455Net Premium Tax $7,500

3460Payroll Paid to Eligible Florida Employees $30,000

3468Factor for calculating Maximum Salary Credit x 15%

3476Maximum Salary Credit $4,500

3481Net Premium Tax $7,500

3486Factor for Calculating Maximum

3490Combined Credit 65%

3493for Salaries and Corporate Income

3498Taxes Paid _______

3501Maximum Combined (Salary plus CIT) Credit $4,875

3509Corporate Income Taxes Paid in

3514Previous Year ($2,200)

3518Usable Salary Credit (Cannot Exceed Maximum $2,675

3526Salary Credit)

3528----------------------------------------------------------

3529Net Premium Tax $7,500

3534Corporate Income Tax Credit ($2,200)

3540Usable Salary Credit ($2,675)

3545Total Premium Taxes (Paid to GR) $2,625

3553Probable Tax from Retaliation against $535

3559Salary Credit ($2,675 x 20%)

3565Retaliatory Taxes from the Rate $2,500

3572Differential ($1,000,000 x .25%) $3,035

3580Total Premium and Retaliatory Taxes $5,660

3587Paid to General Revenue

359140. House of Representatives Committee on Finance &

3599Taxation Bill Analysis and Economic Impact Statement of PCB FT

360994-12 (1994), stated that the 1994 amendments to Section

3618624.5091, Florida Statutes (1993), had no fiscal impact.

362641. The amount of wor kers’ compensation administrative

3634assessments may vary. Currently, the amount of workers’

3642compensation administrative assessments exceeds premium taxes,

3648which limit the amount allowed as a deduction against premium

3658taxes under section 440.51(5), Florida Statutes.

3664CONCLUSIONS OF LAW

366742. Under Section 120.56(2), Florida Statutes ( Supp.

36751996):

3676The [proposed rule challenge] petition shall state with

3684particularity the objections to the proposed rule and

3692the reasons that the proposed rule is an invalid

3701exercise of delegated legislative authority. The

3707agency then has the burden to prove that the proposed

3717rule is not an invalid exercise of delegated

3725legislative authority as to the objections raised.

373243. The Petitioners in these proceedings contend variously

3740that the DOR’s proposed rules and forms at issue are invalid

3751under Section 120.52(8)(a)-(c) and (e)-(f), Florida Statutes

3758( Supp. 1996), which provides:

3763Invalid exercise of delegated legislative authority"

3769means action which goes beyond the powers, functions,

3777and duties delegated by the Legislature. A proposed or

3786existing rule is an invalid exercise of delegated

3794legislative authority if any one of the following

3802applies:

3803(a ) The agency has materially failed to follow the

3813applicable rulemaking procedures or requirements set

3819forth in this chapter;

3823(b ) The agency has exceeded its grant of rulemaking

3833authority, citation to which is required by

3840s. 120.54(3)(a )1.;

3843(c ) The rule enlarges, modifies, or contravenes the

3852specific provisions of law implemented, citation to

3859which is required by s. 120.54(3)(a)1.;

3865* * *

3868(e ) The rule is arbitrary or capricious;

3876(f ) The rule is not supported by competent

3885substantial evidence . . ..

389044. Sections 120.52(8) and 120.536(1), Florida Statutes

3897( Supp. 1996 ), both also provide:

3904A grant of rulemaking authority is necessary but not

3913sufficient to allow an agency to adopt a rule; a

3923specific law to be implemented is also required. An

3932agency may adopt only rules that implement, interpret,

3940or make specific the particular powers and duties

3948granted by the enabling statute. No agency shall have

3957authority to adopt a rule only because it is reasonably

3967related to the purpose of the enabling legislation and

3976is not arbitrary and capricious, nor shall an agency

3985have the authority to implement statutory provisions

3992setting forth general legislative intent or policy.

3999Statutory language granting rulemaking authority or

4005generally describing the powers and functions of an

4013agency shall be construed to extend no further than the

4023particular powers and duties conferred by the same

4031statute.

403245. Before the 1994 amendments to Section 624.5091(3),

4040Florida Statutes (1993), the retaliatory tax imposed by (1) of

4050the statute did “not apply as to . . . special purpose

4062obligations or assessments imposed by another state in connection

4071with” workers’ compensation insurance.

407546. Before the decision in Department of Revenue vs. Zurich

4085Insurance Company , 667 So. 2d 365 (Fla. 1st DCA 1995), the DOR’s

4097Florida Administrative Code Rule 12B-8.016(3)(a)(4) provided that

4104assessments imposed by other states which were comparable to the

4114Workers’ Compensation Administrative Assessment (WCAA) imposed by

4121Section 440.51, Florida Statutes, shall be included in the

4130calculation of the retaliatory tax provided in Section 624.5091,

4139Florida Statutes (1993).

414247. In Zurich , a DOAH Hearing Officer invalidated the DOR’s

4152Florida Administrative Code Rule 12B-8.016(3)(a)(4) as an

4159unlawful exercise of delegated legislative authority because the

4167WCAA was a special purpose obligation or assessment and, under

4177Section 624.5091(3), Florida Statutes (1993), the retaliatory tax

4185did not apply as to assessments imposed other states which were

4196comparable to the WCAA. The DOR appealed, and the Zurich court

4207agreed with the Administrative Law Judge and affirmed the final

4217order.

4218Zurich Controls ;

4220WCAA are Special Purpose Obligations or Assessments

422748. FMIC and AAI argue primarily that the Zurich decision

4237was wrong, or that it does not control Section 624.5091(3),

4247Florida Statutes (1995). But Zurich ’s efficacy does not depend

4257on its correctness; regardless whether it is wrong, it is

4267controlling precedent in this proceeding. See Stanfill vs.

4275State , 384 So. 2d 141, 143 (Fla. 1980). And the deletion of the

4288words “by another state” from the statute in 1994 is not a valid

4301reason to conclude that WCAA are not “special purpose obligations

4311or assessments imposed in connection with” workers’ compensation

4319insurance under Section 624.5091(3), Florida Statutes (1995). It

4327must be concluded that they are.

433349. Even if Zurich did not control, Section 440.51(5),

4342Florida Statutes (1995), would not require the conclusion that

4351WCAA are not “special purpose obligations or assessments imposed

4360in connection with” workers’ compensation insurance under Section

4368624.5091(3), Florida Statutes (1995). Section 440.51(5) provides

4375only that they “shall be allowed as a deduction against the

4386amount of any other tax levied by the state upon the premiums,

4398assessments, or deposits for workers’ compensation insurance on

4406contracts or policies of said insurance carrier, self-insurer, or

4415commercial self-insurance fund.” The retaliatory tax imposed

4422under Section 624.5091(3), Florida Statutes (1995), is not a tax

4432“upon the premiums, assessments, or deposits for workers’

4440compensation insurance on contracts or policies of said insurance

4449carrier, self-insurer, or commercial self-insurance fund.” It is

4457a tax to counterbalance another state’s imposition of an

4466aggregate burden of taxes, licenses and other fees on Florida

4476insurers which is greater than the aggregate burden of Florida’s

4486taxes, licenses and other fees on similar insurers of the other

4497state. See Gallagher vs. Motors Ins. Corp. , 605 So. 2d 62 (Fla.

45091992). See also Western and Southern Life Ins. Co. vs. State Bd.

4521of Equalization of Calif. , 451 U.S. 648. 101 S.Ct. 2070, 68 L.Ed.

45332d 514(1981).

4535Authority for Rulemaking Independent of Zurich

454150. AAI contends that the Zurich decision is inadequate

4550authority for promulgation of the proposed rules and proposed

4559forms. But, clearly, the DOR’s rulemaking authority does not

4568derive from Zurich ; it remains statutory. Rather, Zurich just

4577told the DOR that its existing rules were invalid to the extent

4589that they did not treat WCAA as “special purpose obligations or

4600assessments imposed in connection with” workers’ compensation

4607insurance.

4608Proposed Application of Retaliatory Tax is Correct

461551. Since WCAA are “special purpose obligations or

4623assessments imposed in connection with” workers’ compensation

4630insurance, the next question becomes whether the retaliatory tax

4639is being applied as to WCAA under the proposed rules and forms.

4651It is concluded that the retaliatory tax is not being applied as

4663to WCAA under the proposed rules and forms. Rather, as

4673authorized under Section 624.5091(1), Florida Statutes (1995), it

4681is being applied as to the premium tax. The premium tax is the

4694tax after applicable deductions and credits. As provided in

4703Section 624.509(7), Florida Statutes (1995), the WCAA are

4711deductions against the premium tax. The proposed rules and forms

4721are consistent with these statutes.

472652. As the DOR points out in its arguments, the proposed

4737rules and forms do not change the way in which the retaliatory

4749tax is applied to “special purpose obligations or assessments

4758imposed in connection with particular kinds of insurance other

4767than property insurance . . . .” Existing Florida Administrative

4777Code Rules 12B-8.016(2) and (3) make it clear both that the DOR

4789always has used the net premium tax as the starting point in

4801determining retaliatory taxes and that “special purpose

4808obligations or assessments imposed in connection with particular

4816kinds of insurance other than property insurance” are not

4825included in retaliatory tax calculations. The proposed rules and

4834forms merely follow Zurich by identifying WCAA as being such

4844“special purpose obligations or assessments imposed in connection

4852with particular kinds of insurance other than property

4860insurance.”

486153. As the DOR further points out in its arguments, none of

4873the Petitioners have directly challenged the validity of existing

4882Florida Administrative Code Rules 12B-8.016(2) and (3). Any

4890direct challenge to those rules has been waived. See Cole Vision

4901Corp. vs. Dept. of Bus. and Prof. Reg., Bd. of Optometry , 688

4913So. 2d 404 (Fla. 1 st DCA 1997). Those rules are presumed to be

4927valid. See City of Palm Bay vs. Dept. of Transp. , 588 So. 2d 624

4941(Fla. 1 st DCA 1991); State Bd. of Optometry vs. Fla. Soc. Of

4954Ophthalmology , 538 So. 878 (Fla. 1 st DCA 1988). In addition, the

4966Legislature has adopted the existing Florida Administrative Code

4974Rules 12B-8.016(2) and (3) application of the retaliatory tax to

4984“special purpose obligations or assessments imposed in connection

4992with particular kinds of insurance other than property insurance”

5001by reenacting the retaliatory tax statute several times since

50101990 without modifying or rejecting the DOR’s rules. See Szabo

5020Food Services, Inc., vs. Dickinson , 286 So. 2d 529, 531 (Fla.

50311973); Cole Vision Corp. vs. Dept. of Bus. and Prof. Reg., Bd. of

5044Optometry , supra , at 408.

504854. Existing Florida Administrative Code Rules 12B-8.016(2)

5055and (3) control the application of the retaliatory tax as to

5066WCAA, and the proposed rules and forms are consistent with those

5077rules.

5078Comportment with American Southern

508255. AIA argues that the decision in American Southern Ins.

5092Co. vs. Dept of Revenue , 674 So. 2d 810 (Fla. 1 st DCA 1996),

5106compels the conclusion that gross premium taxes must be used as

5117the starting point in determining retaliatory taxes (or,

5125alternatively, the WCAA deduction from gross premium taxes must

5134be added back to net premium taxes.) But American Southern does

5145not compel this conclusion. The American Southern decision

5153turned upon a construction of the term “similar insurer” in

5163Section 624.5091(1), Florida Statutes (1991). In that case, the

5172a Georgia insurer filed suit to reduce the retaliatory tax sought

5183to be imposed. The Georgia insurer contended that, in

5192calculating Florida’s retaliatory tax, the DOR should have used

5201the net premium taxes it paid in Georgia, after taking advantage

5212of a premium tax rate abatement provision under Georgia law for

5223insurers investing at least 75% of its nonfederal assets in

5233Georgia property—which reduced its Georgia premium tax rate from

52424.75% to 3%. The American Southern court held that, compared to

5253the Georgia insurer, a Florida “similar insurer” would be a

5263Florida insurer that would not be able to take advantage of

5274Georgia’s rate abatement under Georgia law, so that the DOR

5284properly used the higher 4.75% Georgia premium tax rate in

5294calculating the Florida retaliatory tax due. The American

5302Southern court did not hold that net premium taxes should not be

5314used as the starting point in determining Florida’s retaliatory

5323tax, or that the WCAA imposed under Section 440.51(1) should not

5334be allowed as a deduction under Section 440.51(5) for purposes of

5345calculating those net premium taxes. Arguably contrary dicta in

5354American Southern is not controlling.

5359Support from Pacific Mutual

536356. Strong support for the DOR’s position is found in the

5374decision in Pacific Mutual Life Ins. Co. vs. G. A. Bushnell , 396

5386So. 2d 253 (Ariz. 1964). In that case, Arizona’s retaliatory tax

5397statute had an exclusion for ad valorem taxes (as does

5407Florida’s), but its insurance premium tax statute provided no

5416deduction or credit for ad valorem taxes against insurance

5425premium tax payable in Arizona. Arizona tried to assess

5434retaliatory taxes against a California insurer. Although

5441California gave insurers such a credit for California’s ad

5450valorem taxes in computing insurance premium tax payable in

5459California, Arizona contended that the credit should be added

5468back in to the computation of California’s insurance premium

5477taxes for purposes of Arizona’s retaliatory tax. The Arizona

5486Supreme Court rejected the “add back” and held that the

5496comparison should be on the basis of the “net” premium tax

5507actually paid under California law.

5512LMIC and AAI Expressio Unius Argument

551857. Instead of adopting AIA’s American Southern argument,

5526LMIC and AAI attempt to advance the following intricate statutory

5536construction argument. Section 624.5091(1), Florida Statutes

5542(1995), provides that, in determining retaliatory taxes, 80% of

5551the premium tax salary credit is not “taken into consideration.”

5561This is accomplished by adding 80% of that deduction back into

5572the net premium tax. Under Section 624.5091(3), Florida Statutes

5581(1995), the retaliatory tax is “not applied as to” personal

5591income taxes, sales or use taxes, ad valorem taxes on real or

5603personal property, reimbursement of premiums paid to the Florida

5612Hurricane Catastrophe Fund, emergency assessments to the Florida

5620Hurricane Catastrophe Fund, or “special purpose obligations or

5628assessments imposed in connection with particular kinds of

5636insurance other than property insurance,” except that

5644“deductions, from premium taxes or other taxes otherwise payable,

5653allowed on account of real estate or personal property taxes paid

5664shall be taken into consideration by the department in

5673determining the propriety and extent of retaliatory action under

5682this section.” It is argued that, under the rule of statutory

5693interpretation that “ expressio unius est exclusio alterius ,”

5702express mention of deductions for real estate or personal

5711property taxes excludes deductions for any of the others listed

5721under Section 624.5091(3), Florida Statutes (1995), as to which

5730the the retaliatory tax is “not applied.” See Thayer vs. State ,

5741335 So. 2d 815, 817 (Fla. 1976).

574858. Admittedly, it is not obvious why the concluding clause

5758of Section 624.5091(3), Florida Statutes (1995), only mentions

5766real estate or personal property taxes. But it is concluded

5776that, in the case of this statute, blithe resort to the

5787“ expressio unius ” doctrine exclusively is not the appropriate way

5798to ascertain the legislative intent. Other guides to the

5807legislative intent--such as the doctrine of deference to

5815interpretations given by the agency authorized by statute to

5824administer the statute and the doctrine of legislative

5832reenactment--also must be taken into account. See Szabo Food

5841Services, Inc., vs. Dickinson , supra ; Cole Vision Corp. vs. Dept.

5851of Bus. and Prof. Reg., Bd. of Optometry , supra . Even without

5863legislative reenactment, there is the rule of statutory

5871interpretation that deference is to be given to reasonable and

5881not clearly erroneous agency interpretations of ambiguous

5888statutes administered and enforced by the agency, as well as the

5899agency’s own rules promulgated under those statutes. See PW

5908Ventures, Inc. vs. Nichols , 533 So. 2d 281 (Fla. 1988) ; Fla.

5919Institutional Legal Services, Inc., v. Fla. Dept. of Corrections ,

5928579 So. 2d 267 (Fla. 1 st DCA 1991) ; Skiff’s Workingman’s Nursery

5940vs. Dept. of Transp. , 557 So. 2d 233, 234 (Fla. 4 th DCA 1990) ;

5954Sunshine Jr. Stores, Inc., vs. Dept. of Environmental Reg. , 556

5964So. 2d 1177 (Fla. 1 st DCA 1990); Tri-State Sys ., Inc. vs.

5977Department of Transp. , 491 So. 2d 1192 (Fla. 1st DCA 1986) ; Shell

5989Harbor Group vs. Dept. of Business Reg. , 487 So. 2d 1141 (Fla.

60011st DCA 1986) ; Dept. of Professional Reg., Bd. of Medical

6011Examiners vs. Durrani , 455 So. 2d 515, 517 (Fla. 1st DCA 1984);

6023Dept. of Admin. vs. Nelson , 424 So. 2d 852, 858 (Fla. 1st DCA

60361982) ; Dept. of Health, etc., vs. Framat Realty, Inc. , 407 So. 2d

6048238, 241 (Fla. 1st DCA 1981).

6054AIA’s Legislative History Argument

605859. AIA also argues that the Fiscal Comments to the House

6069of Representatives Insurance Committee Final Staff Analysis and

6077Economic Impact Statement for CS/CS/CS/HB 336 in 1989 indicate

6086legislative intent that gross premium taxes be used as the

6096starting point in determining retaliatory taxes (or,

6103alternatively, the WCAA deduction from gross premium taxes be

6112added back to net premium taxes.) To the contrary, the analysis

6123makes it clear that WCAA are properly deductions from insurance

6133premium taxes. The analysis starts out by stating that

6142CS/CS/CS/HB 336 reduces the insurance premium tax rate and alters

6152certain credits against the tax . It repeatedly shows how the

6163premium tax is reduced by various credits, including the WCAA.

617360. On first blush, it might appear that the hypothetica l

6184example in the fiscal comments assumes the calculation of

6193retaliatory taxes based on the difference between gross premium

6202tax percentages in Florida and in a hypothetical foreign state.

6212But it is more likely that, unlike for its demonstration of the

6224effect of the salary credit on the insurance premium tax and the

6236retaliatory tax, the fiscal comments assume an identical WCAA

6245deduction in the hypothetical foreign state and compare gross

6254premium tax percentages in Florida and in the hypothetical

6263foreign state as a simplified way of generally showing the fiscal

6274impact on Florida insurers from the amendments to the premium tax

6285statutes proposed in the legislation. As with the expressio

6294unius doctrine, it is concluded that the fiscal comments are not

6305a clear enough expression of legislative intent to override all

6315the other indications that “special purpose obligations or

6323assessments imposed in connection with particular kinds of

6331insurance other than property insurance” are intended to be

6340deductions from the insurance premium tax, that net premium tax

6350is the proper starting point for calculating the retaliatory tax,

6360and that “special purpose obligations or assessments imposed in

6369connection with particular kinds of insurance other than property

6378insurance” should not be added back to the premium tax for

6389purposes of calculating the retaliatory tax.

6395Reconciling Facially Conflicting Legislative Goals

640061. The final statutory argument advanced by AIA, LMIC, and

6410AAI is essentially that implementation of Florida’s retaliatory

6418tax using the proposed rules and forms would undo the Florida

6429Legislature’s intent to ease the insurance premium tax burden on

6439foreign insurers offering workers’ compensation insurance in

6446Florida. It suffices to say that the Florida Legislature also

6456clearly intends to impose a retaliatory tax where a foreign

6466insurer’s domicile state imposes on Florida insurers doing

6474business in the foreign state a greater aggregate tax burden than

6485Florida would otherwise impose on the foreign insurer doing

6494business in Florida.

6497No Constitutional Impediment

650062. AIA also contends that the implementation of Florida’s

6509retaliatory tax using the proposed rules and forms would be

6519unconstitutional because it would deny foreign insurers equal

6527protection. But the argument is based on an erroneous premise.

6537As implemented by the proposed rules and forms, Florida’s

6546retaliatory tax would not treat Florida and foreign insurers

6555differently. Both would get the advantage of a deduction for

6565WCAA and other “special purpose obligations or assessments

6573imposed in connection with particular kinds of insurance other

6582than property insurance” from Florida’s insurance premium taxes,

6590and such deductions allowed in a foreign state against its

6600insurance premium taxes would be treated the same way for

6610purposes of calculating Florida’s retaliatory tax. See Western

6618and Southern Life Ins. Co. vs. State Bd. of Equalization of

6629Calif. , supra ; American Southern Ins. Co. vs. Dept of Revenue ,

6639supra ; Gallagher vs. Motors Ins. Corp. , supra . This is not a

6651case where Florida’s retaliatory tax is being imposed “beyond the

6661point of equalization solely to generate revenue at the expense

6671of foreign insurers . . ..” Contrast United States Automobile

6681Ass’n vs. Curiale , 668 N.E.2d 384, 388 (N.Y. 1996).

6690Public Notice was Adequate

669463. AAI argues that the DOR’s notice of its intent to adopt

6706the proposed rules and forms was inadequate under Section

6715120.54(3)(a )1., Florida Statutes ( Supp. 1996). That statute

6724requires notice to set forth “a short, plain explanation of the

6735purpose and effect of” the proposed rules and forms. AAI

6745concedes the adequacy of the notice of the purpose of the

6756proposed rules and forms but contends that notice of their effect

6767was inadequate.

676964. The “Purpose and Effect” section of the DOR’s

6778publication in the Florida Administrative Weekly stated:

6785The proposed amendments to Rule Chapter 12B-8, F.A.C.,

6793are needed to implement various recent court decisions,

6801delete obsolete language, provide definitional language

6807concerning “ multiperil insurance,” and clarify which

6815insurers are subject to the tax imposed under s.

6824624.509, F.S., and how they are to calculate taxable

6833premiums and allowable credits.

6837The “Summary” section of the publication also stated that Florida

6847Administrative Code Rule 12B-8.016 was being revised “to

6855incorporate statutory or procedural changes made since the last

6864rule revision and to delete obsolete language within these

6873rules.” Elsewhere in the notice, the law implemented was cited,

6883including Sections 624.509 and 624.5091, Florida Statutes (1995).

6891Finally, the notice specified the rule amendments, striking

6899through the deleted language and underlining added language.

690765. It is concluded that this notice was adequate. It was

6918not a defect for the same information in the “Purpose and Effect”

6930section of the publication to give notice of both the purpose and

6942effect of the proposed rules and forms. In any event, the

6953citation to Sections 624.509 and 624.5091, Florida Statutes

6961(1995), as the law implemented would cure any defect in the

6972“Purpose and Effect” section of the notice. See Agency for

6982Health Care Admin. vs. University Hosp., Ltd. , 670 So. 2d 1037

6993(Fla. 1 st DCA 1996). So would the specification of the proposed

7005changes to the language of the rule. See Final Order, Fla.

7016Society of Ophthalmology vs. Dept. of Prof. Reg. , DOAH Case No.

702787-1743RX, 10 F.A.L.R. 438, entered December 2, 1987.

7035No Issue as to Effective Date

704166. The Petitioners contended in these proceedings that the

7050proposed rules and forms could not be applied prior to being

7061noticed. Without conceding the legal point, the DOR stipulated

7070in the Prehearing Stipulation, at final hearing, and in its post-

7081hearing submissions that they would apply effective January 1,

70901997, making the retroactive application arguments moot. (The

7098DOR continues to maintain that the legal consequence flowing from

7108the decisions in Zurich and American Southern are effective on

7118the dates of those decisions.)

7123DISPOSITION

7124Based on the foregoing Findings of Fact and Conclusions of

7134Law, the proposed rule challenge petitions filed in these

7143proceedings are denied, and the DOR’s proposed Florida

7151Administrative Code Rules 12B-8.003 and 12B-8.016 and proposed

7159Forms DR-907 and DR-908 are declared valid.

7166DONE AND ORDERED this 29th day of August, 1997, in

7176Tallahassee, Leon County, Florida.

7180___________________________________

7181J. LAWRENCE JOHNSTON

7184Administrative Law Judge

7187Division of Administrative Hearings

7191The DeSoto Building

71941230 Apalachee Parkway

7197Tallahassee, Florida 32399-3060

7200(904) 488- 9675 SUNCOM 278-9675

7205Fax FILING (904) 921-6847

7209Filed with the Clerk of the

7215Division of Administrative Hearings

7219this 29th day of August, 1997.

7225ENDNOTES

72261 Florida’s retaliatory tax statute was renumbered in 1959,

72351989 and 1990 as follows: §626.061, Florida Statutes (1959),

7244renumbered §624.429, Florida Statutes (1989), renumbered

7250§624.5091, Florida Statutes (1990).

72542 Prior to 1994, Section 624.5091(3) read:

7261This section does not apply as to personal

7269income taxes, nor as to ad valorem taxes on

7278real or personal property, nor as to special

7286purpose obligations or asessments imposed by

7292another state in connection with particular

7298kinds of insurance other than property

7304insurance , except that deductions, from

7309premium taxes or other taxes otherwise

7315payable allowed on account of real estate or

7323personal property taxes paid shall be taken

7330into consideration by the department in

7336determining the propriety and extent or

7342retaliatory action under this section

7347( emphasis supplied).

73503 Section 213.05 directs the Department of Revenue to

7359administer provisions of §§624.509 through 624.514. Section

7366213.06(1) authorizes the Department of Revenue to promulgate

7374rules to implement those responsibilities.

73794 Zurich Insurance Company vs. Department of Revenue , DOAH

7388Case Number 94-5075RX.

73915 Florida Administrative Weekly, Volume 22, Number 52,

7399December 27, 1996.

7402COPIES FURNISHED:

7404Richard E. Coates, Esquire

7408Paul R. Ezatoff, Esquire

7412Katz, Kutter, Haigler, Alderman,

7416Marks, Bryant & Yon, P.A.

7421Post Office Box 1877

7425Tallahassee, Florida 32302

7428Paul R. Sanford

7431Rogers, Towers, Bailey, Jones & Gay

74371301 Riverplace Boulevard, Suite 1500

7442Jacksonville, Florida 32207

7445James C. Massie, Esquire

7449Janice G. Scott, Esquire

7453Massie & Scott

7456Post Office Box 10371

7460Tallahassee, Florida 32302

7463Douglas A. Mang, Esquire

7467Wendy Russell Wiener, Esquire

7471Mang Law Firm, P.A.

7475Post Office Box 11127

7479Tallahassee, Florida 32302-3127

7482James F. McAuley

7485Assistant Attorney General

7488Department of Legal Affairs

7492The Capitol Tax Section

7496Tallahassee, Florida 32399-1050

7499Carroll Webb, Executive Director

7503Administrative Procedures Committee

7506120 Holland Building

7509Tallahassee, Florida 32399-1300

7512Liz Cloud, Chief

7515Bureau of Administrative Code

7519Department of State

7522The Elliot Building

7525Talllahassee, Florida 32399-0250

7528NOTICE OF RIGHT TO JUDICIAL REVIEW

7534A party who is adversely affected by this Final Order is entitled

7546to judicial review pursuant to Section 120.68, Florida Statutes.

7555Review proceedings are governed by the Florida Rules of Appellate

7565Procedure. Such proceedings are commenced by filing one copy of

7575a notice of appeal with the Agency clerk of the Division of

7587Administrative Hearings and a second copy, accompanied by filing

7596fees prescribed by law, with the District Court of Appeal, First

7607District, or with the District Court of Appeal in the Appellate

7618District where the party resides. The notice of appeal must be

7629filed within 30 days of rendition of the order to be reviewed.

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Date
Proceedings
Date: 12/03/1999
Proceedings: Mandate for the First DCA filed.
Date: 11/16/1999
Proceedings: First DCA Opinion (Affirmed) filed.
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Date: 11/15/1999
Proceedings: Opinion
Date: 06/30/1999
Proceedings: Index, Record, Certificate of Record sent out.
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Proceedings: BY ORDER OF THE COURT (motion to estend period of relinquishment is granted, 1st DCA) filed.
Date: 04/12/1999
Proceedings: BY ORDER OF THE COURT (appellant has failed to timely file the record on appeal, within 20 days from this order appellant to show cause why this appeal should not be dismissed) filed.
Date: 07/28/1998
Proceedings: BY ORDER OF THE COURT (Motion for permission to file amended reply brief is granted) filed.
Date: 07/28/1998
Proceedings: filed.
Date: 06/09/1998
Proceedings: BY ORDER OF THE COURT (extension of time to file reply brief is granted) filed.
Date: 04/29/1998
Proceedings: BY ORDER OF THE COURT (1st. DCA) Motion for extension of time is granted filed.
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Proceedings: Record returned from the First DCA filed.
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Proceedings: BY ORDER OF THE COURT (Appeal Dismissed per First DCA) filed.
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Proceedings: By Order of the Court (Motion for extension of time is Denied, 1st DCA) filed.
Date: 01/02/1998
Proceedings: BY ORDER OF THE COURT (motion for extension of time is granted) filed.
Date: 12/02/1997
Proceedings: Index, Record, Certificate of Record sent out.
Date: 11/24/1997
Proceedings: Payment for indexing in the amount of $64.00 filed.
Date: 11/04/1997
Proceedings: Invoice for indexing sent out.
Date: 11/04/1997
Proceedings: Index sent out.
Date: 10/03/1997
Proceedings: Letter to DOAH from DCA filed. DCA Case No. 1-97-3824.
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Proceedings: Letter to DOAH from DCA filed. DCA Case No. 1-97-3823.
Date: 09/30/1997
Proceedings: Certificate of Notice of Appeal sent out.
Date: 09/30/1997
Proceedings: Certificate of Notice of Appeal sent out.
Date: 09/29/1997
Proceedings: Notice of Appeal (Douglas Mang) filed.
Date: 09/29/1997
Proceedings: Notice of Administrative Appeal (James Massie) filed.
Date: 09/26/1997
Proceedings: Letter to DOAH from DCA filed. DCA Case No. 1-97-323.
Date: 09/24/1997
Proceedings: Certificate of Notice of Administrative Appeal sent out.
Date: 09/23/1997
Proceedings: Notice of Appeal Administrative (Attorneys for AIA) filed.
Date: 09/23/1997
Proceedings: Notice of Appeal filed.
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Date: 08/29/1997
Proceedings: DOAH Final Order
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Date: 08/29/1997
Proceedings: CASE CLOSED. Final Order sent out. Hearing held 07/01/97.
Date: 08/12/1997
Proceedings: Respondent, Department of Revenue`s Notice of Filing Amended Proposed Recommended Order; Respondent`s Amended Proposed Recommended Order filed.
Date: 08/08/1997
Proceedings: American Insurance Association`s Proposed Final Order; Disk filed.
Date: 08/08/1997
Proceedings: Petitioner`s (Liberty Mutual) Proposed Final Order W/Tagged Disk; Petitioner`s (Liberty Mutual) Memorandum of Law in Support of Proposed Final Order filed.
Date: 08/08/1997
Proceedings: Proposed Final Order of Petitioner, Alliance of American Insurers filed.
Date: 08/08/1997
Proceedings: Respondent, Department of Revenue`s Request for Judicial Notice filed.
Date: 08/08/1997
Proceedings: Respondent, Department of Revenue`s Supporting Memorandum of Law; Respondent, Department of Revenue`s Notice of Filing Proposed Recommended Order; Respondent`s Proposed Recommended Order filed.
Date: 07/14/1997
Proceedings: Notice of Filing; DOAH Court Reporter Final Hearing Transcript filed.
Date: 07/01/1997
Proceedings: CASE STATUS: Hearing Held.
Date: 07/01/1997
Proceedings: Letter to Judge Johnston from R. Coates Re: Enclosing case law filed.
Date: 06/27/1997
Proceedings: (Petitioner) Request for Official Recognition filed.
Date: 06/26/1997
Proceedings: Petitioner Concurrence With Prehearing Stipulation (filed via facsimile).
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Proceedings: (Joint) Prehearing Stipulation (filed via facsimile).
Date: 06/24/1997
Proceedings: (Respondent) Notice of Filing (filed via facsimile).
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Proceedings: Joint Motion for Brief Enlargement of Time (filed via facsimile).
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Proceedings: Prehearing Stipulation of Facts filed.
Date: 06/11/1997
Proceedings: Joint Motion for Brief Enlargement of Time filed.
Date: 06/06/1997
Proceedings: (Petitioner) Request for Official Recognition; Exhibit filed.
Date: 06/03/1997
Proceedings: Respondent, Department of Revenue`s Request for Production of Documents filed.
Date: 06/03/1997
Proceedings: Respondent, Department of Revenue`s Request for Production of Documents filed.
Date: 05/28/1997
Proceedings: (Petitioner) Notice of Voluntary Dismissal filed.
Date: 05/09/1997
Proceedings: Order Continuing Final Hearing sent out. (hearing set for 7/1/97; 9:00am; Tallahassee)
Date: 05/06/1997
Proceedings: Petitioner`s Request for Oral Argument filed.
Date: 05/06/1997
Proceedings: Petitioner`s Motion for Protective Order and Motion to Quash Notice of Taking Deposition filed.
Date: 05/05/1997
Proceedings: (Respondent) Notice of Serving First Set of Interrogatories to Petitioners; Respondent, Department of Revenue`s First Set of Interrogatories filed.
Date: 03/21/1997
Proceedings: Department of Revenue`s First Request for Production of Documents; Department of Revenue`s Second Request for Admission; Department of Revenue`s First Set of Interrogatories filed.
Date: 03/21/1997
Proceedings: (Petitioner) Amended Petition to Determine Invalidity of Proposed Rules filed.
Date: 03/19/1997
Proceedings: Order Granting Leave to Amend sent out.
Date: 03/14/1997
Proceedings: (Petitioner) Motion for Leave to Amend or Alternatively Motion to Deem Changes to Rule 12B-8.003 Incorporated in Petitioners` Administrative Challenge filed.
Date: 03/14/1997
Proceedings: (From J. McAuley) Notice of Appearance filed.
Date: 02/26/1997
Proceedings: Prehearing Order sent out.
Date: 02/26/1997
Proceedings: Notice of Final Hearing sent out. (hearing set for 05/28/97;9:00 am;Tallahassee)
Date: 02/26/1997
Proceedings: Order of Consolidation sent out. Consolidated case are: 97-000323RP 97-000588RP 97-000632RP 97-000655RP. CONSOLIDATED CASE NO - CN002652
Date: 02/24/1997
Proceedings: (Respondent) Answer filed.
Date: 02/21/1997
Proceedings: Status Report on Consolidation of Cases (Petitioner) filed.
Date: 02/21/1997
Proceedings: Stipulation to Consolidate Related Matters (Petitioner) filed.
Date: 02/18/1997
Proceedings: (Petitioner) Motion to Consolidate (Cases to be consolidated: 97-588RP, 97323RP) filed.
Date: 02/11/1997
Proceedings: Order Continuing Final Hearing and Requiring Status Report sent out.(Parties to file various case & hearing information by 2/21/97)
Date: 02/06/1997
Proceedings: Joint Stipulation and Motion to Hold Case In Abeyance filed.
Date: 01/31/1997
Proceedings: Notice of Final Hearing sent out. (hearing set for 2/19/97; 9:00am; Talla)
Date: 01/27/1997
Proceedings: Order of Assignment sent out.
Date: 01/22/1997
Proceedings: Letter to Liz Cloud & Carroll Webb from M. Lockard w/cc: Agency General Counsel sent out.
Date: 01/17/1997
Proceedings: Petition of Determine Invalidity of Proposed Rules filed.

Case Information

Judge:
J. LAWRENCE JOHNSTON
Date Filed:
01/17/1997
Date Assignment:
01/27/1997
Last Docket Entry:
12/03/1999
Location:
Tallahassee, Florida
District:
Northern
Agency:
Department of Revenue
Suffix:
RP
 

Related DOAH Cases(s) (5):

Related Florida Statute(s) (12):

Related Florida Rule(s) (4):