12-001956 Department Of Revenue vs. Colorcars Experienced Automobiles, Inc., N/K/A Experienced Vehicles, Inc. Status: Closed Recommended Order on Thursday, December 13, 2012.

Summary: Grounds proven to revoke Respondent's certificate of registration for failure to comply with ch. 212. Respondent's last minute attempt to add counsel with schedule conflict was a delay tactic; continuance two days before hearing not justified.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF REVENUE , )

)

Petitioner , )

)

vs. ) Case No . 12 - 1956

)

COLORCARS EXPERIENCED )

AUTOMOBILES, INC., N/K/A )

EXPERIENCED VEHICLES, INC. , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held on

September 20, 2012, in Sarasota, Florida, before Administrative

Law Judge Elizabeth W. McArthur of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: John Mika, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

For Respondent: John T. Early, III, esq. 1/

Colorcars Experienced Auto, Inc.

2311 Tamiami Trail

Nokomis, Florid a 34275 - 3474

Robert Brian Resnick, Esquire 2/

Post Office Box 1872

Boca Raton, Florida 33429 - 1872

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent's certificate

of registration (Certificate) should be revoked for all eged

failures to comply with requirements of chapter 212, Florida

Statutes.

PRELIMINARY STATEMENT

On April 24, 2012, the Department of Revenue (Department or

Petitioner) issued an administrative complaint (Complaint),

alleging that Colorcars Experienced Au tomobiles, Inc., now known

as Experienced Vehicles Inc. (Colorcars or Respondent), violated

certain provisions of chapter 212, including the requirement to

pay taxes when due. Based on these alleged violations, the

Department contended that Colorcars' Cer tificate should be

revoked. Colorcars timely filed a Petition for Formal

Administrative Hearing (Petition) to contest the allegations, and

the matter was forwarded to the Division of Administrative

Hearings (DOAH) for assignment of an Administrative Law J udge to

conduct the hearing requested by Respondent.

The case was initially assigned to Administrative Law Judge

J.D. Parrish, who issued an Initial Order. The parties filed a

joint response to the Initial Order, in which they indicated that

the final hea ring should be held in Sarasota, Florida, and that

they would be available for hearing by early August 2012.

On August 2, 2012, a Notice of Hearing and an Order of

Pre - Hearing Instructions were issued setting the final hearing

for September 20, 2012, and e stablishing pre - hearing requirements

for the orderly and timely preparation of the case in advance of

the final hearing.

In accordance with the pre - hearing requirements, on

September 11, 2012, the Department filed its unilateral

pre - hearing statement, li sting its proposed exhibits and

witnesses and setting forth its position; the Department

confirmed that copies of its proposed exhibits were timely

provided to Respondent. No unilateral pre - hearing statement was

submitted by Respondent, nor did Respondent file lists disclosing

its proposed exhibits or witnesses.

Also on September 11, 2012, the Department filed a motion to

allow a Tallahassee - based Department employee to testify from

Tallahassee. By A mended Notice of Hearing, arrangements were

made for the Department employee to testify at DOAH in

Tallahassee, linked by video teleconference with the hearing site

in Sarasota.

On September 17, 2012, the case was transferred to the

undersigned.

On September 18, 2012, Robert Resnick filed a N otice of

A ppearan ce for Respondent and a motion to continue the final

hearing. The motion asserted that Mr. Resnick had just been

retained to represent Colorcars, needed additional time to

prepare, and wanted to explore settlement with the Department.

The motion recited that the Department did not oppose a

continuance. Nonetheless, by Order dated September 19, 2012, the

motion was denied , because it failed to demonstrate an emergency,

per Florida Administrative Code R ule 28 - 106.210.

On September 19, 2012, Mr. Resnick fil ed an amended motion

to continue the final hearing and to reconsider the order denying

a continuance. This motion reiterated the grounds for requesting

a continuance from the previous day's motion. In addition, the

motion asserted that Mr. Resnick could not be in Sarasota the

next morning , because he was obligated to appear in court in

Broward County in connection with a capital felony case. The

amended motion was denied in a Second Order Denying Continuance

of Final Hearing issued on September 19, 2012.

The final hearing , thus , went forward as scheduled, with

Respondent represented by John T. Early, III, who was designated

as Colorcars' representative in its Petition. The Department

presented the testimony of Kenneth Sexton and Mr. Early and

offered Pet itioner's Exhibits 1 through 9, which were admitted in

evidence. Respondent presented the testimony of Mr. Early and

Charles Wallace, who testified from Tallahassee by video

teleconference. Respondent offered no exhibits in evidence.

Official recognition was taken of DOAH's file in Colorcars

Experienced Automobiles, Inc. v. Department of Revenue , DOAH Case

No. 08 - 5442, which was dismissed without an evidentiary hearing

by Agreed Dismissal With Prejudice, signed by both parties and

filed on February 13, 20 09. In addition, official recognition

was taken of a tax warrant recorded in the official records of

Sarasota County, Florida, on February 20, 2009.

The one - volume Transcript of the final hearing was filed on

October 5, 2012. By agreement, the parties we re permitted to

file their proposed recommended orders (PROs) by November 5,

2012. Petitioner timely filed its PRO. Respondent filed its PRO

one day late, on November 6, 2012, but Petitioner did not file a

motion to strike, or otherwise object to, the la te PRO. Both

parties' PROs have been considered in the preparation of this

Recommended Order.

FINDING S OF FACT

1. The Department is the state agency charged with

administering and enforcing Florida's revenue laws, including the

laws related to the impos ition and collection of sales and use

taxes pursuant to chapter 212.

2. Colorcars is a Florida corporation engaged in the retail

auto sales business in Nokomis, Florida. Colorcars is a "dealer"

within the meaning of section 212.02(6).

3. In order to e ngage in business as a "dealer," Colorcars

was first required to apply for and obtain a Certificate from the

Department. Colorcars first obtained its Certificate in 1994.

4. As a "dealer" holding a Certificate, Colorcars is

obligated to comply with the sales tax laws, including collecting

sales tax from its auto customers, filing returns, and remitting

the collected sales tax to the Department.

5. In a prior DOAH proceeding, Colorcars initially

requested an administrative hearing to contest a Notice of

Proposed Assessment (NOPA) issued in 2005, by which the

Department asserted that Colorcars' sales tax payments were

deficient in the amount of $185,376.54, based on the results of

an audit of Respondent's business for the period from August 1,

2001, throu gh July 31, 2004. With additional penalties and

interest claimed by the Department, the total proposed assessment

as of June 14, 2005, according to the NOPA, was $245,057.07.

Respondent pursued the protest avenues within the Department, but

was unsuccess ful, and the NOPA was confirmed in the Department's

n otice of r econsideration dated August 19, 2008. Colorcars was

given notice of its rights, and Mr. Early filed a Petition for a

Chapter 120 Hearing on Colorcars' behalf. The case was forwarded

to DOAH a nd assigned DOAH Case No. 08 - 5442.

6. DOAH Case No. 08 - 5442 was closed without an evidentiary

hearing. The parties filed an Agreed Dismissal With Prejudice on

February 13, 2009 (2009 Agreed Dismissal), whereby Colorcars

dismissed its petition with pr ejudice, thereby withdrawing its

request for an administrative hearing to contest the NOPA.

Mr. Early signed the 2009 Agreed Dismissal as Colorcars'

qualified representative in that DOAH proceeding, 3/ on

February 13, 2009. The 2009 Agreed Dismissal inclu ded the

following provisions:

4. Colorcars filed this proceeding to

contest the sales tax assessment (the

"Assessment") arising from audit number

200005030 for the period August 1, 2001

through July 31, 2004, which was final

upon issuance of the Departmen t's

August 19, 2008 notice of

reconsideration.

5. This proceeding to contest the

Assessment is hereby dismissed with

prejudice. The Assessment remains

final, valid, and effective in its

entirety.

The sales tax assessment initially contested by Colorcar s in DOAH

Case No. 08 - 5442 will be referred to hereafter as the Final 2008

Assessment.

7. On February 19, 2009, the Department issued a tax

warrant in the amount of $319,512.05 to secure the unpaid Final

2008 Assessment. The tax warrant amount refle cted the unpaid tax

liability, plus penalties, filing fee, and additional interest

that had accrued as of that date. The tax warrant was recorded

in the official records of Sarasota County on February 20, 2009.

8. No evidence was presented to demonstrat e that the tax

warrant recorded in Sarasota County was ever withdrawn, amended,

invalidated, or satisfied. No evidence was presented to

demonstrate that the validity of the tax warrant was ever

challenged in any tribunal (except to the extent that Colorca rs

seeks to question its validity in this proceeding).

9. On February 16, 2010, the Department filed a judgment

lien against Colorcars with the Florida Secretary of State to

secure the same unpaid Final 2008 Assessment, based on the tax

warrant reco rded in Sarasota County on February 20, 2009.

According to the judgment lien certificate in evidence, as of

February 16, 2010, Colorcars' tax liability had mounted to

$365,395.84, which was the amount of the filed judgment lien.

10. No evidence was pres ented to demonstrate that the

judgment lien recorded with the Secretary of State was ever

withdrawn, amended, invalidated, or satisfied. No evidence was

presented to demonstrate that the validity of the judgment lien

was ever challenged in any tribunal.

11. Mr. Early admitted that as of September 20, 2012,

Colorcars has not made any voluntary payments to reduce the sales

tax liability established by the Final 2008 Assessment.

12. In April 2009, the Department froze funds in a

Colorcars bank ac count at Liberty Savings Bank. Over a two - year

period, Colorcars fought the Department's effort to levy the

funds in the Liberty Savings Bank account. Following litigation,

the validity of the Department's action was ultimately confirmed,

and the Departm ent was allowed to levy approximately $64,000.00 4/

to apply to Colorcars' tax liabilities. However, according to

the Department's witness, the funds levied were applied to offset

other Colorcars tax liabilities, and thus, were not applied to

reduce Colorc ars' tax liability stemming from the Final 2008

Assessment. Colorcars took issue with this testimony, claiming

that the levied bank funds should have been applied to reduce the

Final 2008 Assessment.

13. Neither party presented evidence sufficient to re solve

this dispute, but it is unnecessary to decide whether the

Department has properly applied and accounted for the levied

funds for purposes of this proceeding, because the exact amount

of Colorcars' remaining tax debt need not be determined. The

prima ry basis for seeking revocation of Colorcars' Certificate is

Colorcars' failure to comply with the requirements of chapter 212

by failing to pay the mounting tax liability that Colorcars

admitted it owed in February 2009 , when it voluntarily dismissed

with prejudice its challenge to the Final 2008 Assessment.

Colorcars conceded that it has not voluntarily undertaken to pay

one dime of the substantial sales tax deficiency attributable to

a three - year period of business operations that began more than a

deca de ago. Colorcars presented no explanation for its failure

to pay this admitted liability, which grows daily with accruing

interest; Colorcars only asserted that possibly the Department

succeeded in wresting away Colorcars' funds to force a partial

paymen t, which Colorcars fought. Even if the evidence

established that the levied bank funds should be applied to

reduce the total amounts due from the Final 2008 Assessment,

Colorcars would still owe more than $300,000.00 from the Final

2008 Assessment, which would have to be paid for Colorcars to

come into compliance with its obligations under chapter 212.

14. As a related , but independent basis for seeking

revocation, the Complaint alleged that the Department has issued

one or more tax warrants and/or jud gment lien certificates, filed

in the public records, for collection of Colorcars' sales tax

liability resulting from the Final 2008 Assessment. The

Department presented proof that both a tax warrant and a judgment

lien were issued against Colorcars and d uly recorded in the

public records.

15. Colorcars acknowledged that a tax warrant was filed,

but argued that the tax warrant should be deemed void or invalid

because it was issued less than 30 days after the 2009 Agreed

Dismissal, which was before the ti me to appeal had expired.

16. Colorcars did not dispute the Department's evidence of

a duly - recorded judgment lien. Colorcars did not present any

evidence or argument questioning the validity of the judgment

lien, which was not recorded until February 1 6, 2010.

17. The Complaint also charged Colorcars with failing to

pay sales tax when due after collecting the sales tax from

customers, despite filing sales tax returns for December 2011 and

January 2012 that established Colorcars' sales tax liability.

The total amount of sales tax collected by Colorcars from its

customers and not paid over to the Department in th o se two months

wa s $1,401.16. The Complaint alleged that as of March 5, 2012,

an additional $145.93 in penalties and interest was owed in

con nection with this sales tax liability.

18. Colorcars admitted that it collected sales tax from

customers that it has not paid over to the Department for th o se

two months. Colorcars did not dispute the amount of collected

sales tax it failed to pay, or t he amount of penalties and

interest, as alleged in the Complaint.

19. Colorcars claimed that its failure to pay sales tax

collected from its customers should be excused because the

Department made it impossible for Colorcars to pay. According to

Colorca rs, the bank account that was frozen by the Department was

the one set up to make electronic sales tax payments to the

Department. Thus, while Colorcars was required to, and did,

timely file its sales tax returns for December 2011 and

January 2012, Colorc ars contends that it was unable to make the

tax payments admittedly due because it could not do so

electronically.

20. Contrary to Colorcars' claim, the evidence established

that Colorcars could have made arrangements to pay the sales tax

liability some other way besides an electronic payment from the

frozen account that had been set up to make electronic payments.

The Department's witness testified credibly and without

contradiction that Colorcars could have sent payment the

old - fashioned way, by mail o r delivery to the Department.

Colorcars could have made the payments by check from another

account, or by tendering cash, cashiers' check, or money order,

and such payment would have been accepted by the Department.

21. Mr. Early admitted that the sales taxes collected from

customers that should have been paid to the Department were being

held "at the office of corporations attorney." Mr. Early

admitted that Colorcars never tried to make these tax payments

some way other than electronically from the fro zen account, such

as by offering to write a check to the Department or to pay in

cash. Mr. Early admitted that as of the date of the hearing, the

sales tax collected from customers that should have been paid

over to the Department at the time the December 2011 and

January 2012 tax returns were filed , remains unpaid. Mr. Early

gave no legitimate explanation for holding these funds , instead

of paying them over to the Department. 5/

22. As a final item, the Complaint charges Colorcars with

failing to pay a penalty and a fee, totaling $275.00, assessed

because Colorcars allegedly filed its 2009 corporate income tax

return late. Colorcars contends that it believes the return was

timely filed, but was just received late by the Department.

23. The Departme nt failed to present evidence clearly

substantiating its allegation of a late - filed 2009 corporate

income tax return. 6/ Colorcars offered no evidence to prove that

it timely filed its 2009 corporate income tax return.

24. On November 18, 2011, the D epartment initiated the

process for revocation of Colorcars' Certificate by issuing a

notice of revocation conference, requesting Colorcars to appear

at an informal conference. The notice informed Colorcars that

revocation was being considered because of Colorcars' failure to

comply with chapter 212, resulting in a total sales tax liability

claimed by the Department of $432,474.52. Colorcars was informed

that , at the informal conference, Colorcars would have the

opportunity to make payment or present evid ence to demonstrate

why the Department should not revoke Colorcars' Certificate.

The notice advised that the informal conference would be held on

January 18, 2012. A handwritten note on the copy of the notice

in evidence indicates that it was received o n December 14, 2011.

25. Four weeks after the apparent receipt of the notice, on

January 11, 2012, Mr. Early wrote a letter, sent by overnight

courier to the Department, requesting that the informal

conference be rescheduled because Mr. Early was out of the

country. Mr. Early identified two ten - day periods, one in

February and one in March, when he would be in Florida and could

attend an informal conference; Mr. Early expressed a preference

for the latter month, and in particular, for March 7, 2012.

Mr. Early indicated that he intended to be represented by counsel

at the meeting and was interviewing candidates.

26. The Department agreed to reschedule the informal

conference and accommodated Mr. Early by resetting the conference

for the date that Mr. Ea rly said he preferred. The Department's

January 30, 2012, letter rescheduling the conference warned that

"there will be no more change" to the rescheduled revocation

conference.

27. Mr. Early attended the March 7, 2012, revocation

conference, without co unsel. At the final hearing, Mr. Early

indicated that despite the warning that there would be no more

changes to the rescheduled conference date that Mr. Early had

requested, Mr. Early , nonetheless , asked the Department to delay

the conference again becau se he had retained counsel who was not

available on March 7, 2012. The Department apparently adhered to

its warning and did not agree to another delay of the conference.

28. At the informal conference, the Department and

Colorcars apparently came close to reaching a compliance

agreement, a draft of which is in evidence. According to

Mr. Early, he refused to sign the draft agreement offered by the

Department because he would not agree to personally guarantee the

payment schedule agreed to by Colorcars to retire its sales tax

liability. Mr. Early suggested that this was a surprise clause

added at the last minute. In contrast, the Department's witness

testified that it is a standard provision.

29. Mr. Early seemed to suggest that if the Department

dou bted whether Colorcars could meet the schedule of payments to

satisfy its sales tax liability, then the Department should have

compromised the debt and agreed to accept less from Colorcars.

Collectability is one factor considered by the Department in

dete rmining whether to exercise its discretion to compromise a

sales tax liability, but it is only one factor.

30. It is unclear whether Mr. Early presented evidence at

the informal conference regarding Colorcars' financial status or

regarding other factor s bearing on the Department's consideration

of a possible compromise. It is also unclear whether Mr. Early

presented evidence related to Colorcars' sales tax liabilities

claimed by the Department in the notice of revocation conference.

Other than the dra ft compliance agreement itself, which is in

evidence as the proposed agreement that the Department offered

but Mr. Early refused to sign, no credible evidence was presented

to establish what was said or what evidence was presented at the

informal conferenc e. However, following the informal conference,

the total tax liability claimed by the Department was reduced

from the $432,474.52 claimed in the November 18, 2011, revocation

conference notice to $375,473.15, the total amount for which

repayment was sough t in the draft compliance agreement and the

total amount set forth in the Complaint. The Complaint was filed

after Mr. Early's rejection of the draft compliance agreement

offered by the Department.

Claimed D eprivation of R ight to C ounsel/ Q ualified R eprese ntative

31. In its PRO, Respondent asserted as a "procedural issue"

that it was deprived of its right to be represented by counsel or

qualified representative at the final hearing. Thus, additional

F indings of F act are made to specifically address this c laim.

32. The Complaint was mailed to Respondent on April 25,

2012. In addition to setting forth the charges, the Complaint

informed Respondent of its right to an administrative hearing and

its right to be represented by counsel or other qualified

repr esentative. Respondent was given 21 days in which to request

an administrative hearing, and Respondent was informed that if a

hearing was requested, Respondent would be given at least

14 days' notice before the hearing would be held. Thus,

Respondent was on notice that it needed to act quickly to

exercise its right to be represented by counsel or qualified

representative, because the final hearing could be held in very

short order.

33. Respondent's timely - filed Petition set forth

Respondent's choice of representative as follows: "John T.

Early, III, esq. . . . shall be the representative of the

Petitioner [sic: Respondent]."

34. Mr. Early clarified at the hearing that he uses the

title , "esq. , " because he is a lawyer in the state of

Connecticut, but h e is not admitted to practice in the state of

Florida.

35. The Initial Order entered by DOAH on June 1, 2012,

referred the parties to the governing procedural statutes and

rules and contained a summary of procedures. The summary

provided a second notific ation to Colorcars that it may appear

personally or be represented by counsel or other qualified

representative. The summary also gave explicit notice that under

the governing rules, any requests for continuance of the final

hearing must demonstrate good cause and must be filed at least

five days before the hearing date, absent extreme emergency.

36. On June 7, 2012, the parties filed a joint response

indicating that they were available for a final hearing in early

August 2012.

37. On August 2, 2012, a N otice of Hearing was issued,

scheduling the final hearing for September 20, 2012. A separate

Order of Pre - Hearing Instructions established various deadlines

for the orderly and timely preparation for the final hearing.

These deadlines included the follow ing: by September 5, 2012,

the parties were required to meet to discuss settlement

possibilities, exchange witness lists disclosing all potential

witnesses and designating experts as such, exchange all proposed

exhibits, and prepare a joint pre - hearing st ipulation; by

September 10, 2012, the parties were required to file their joint

pre - hearing stipulation; and alternatively, if no joint

pre - hearing stipulation could be reached, then by September 13,

2012, the parties were required to file separate unilate ral

pre - hearing statements.

38. From May 30, 2012, when this case first arrived at

DOAH, through the close of the entire pre - hearing preparation

phase , during which settlement was to be explored, witness and

exhibit choices were to be made and disclosed, and pre - hearing

stipulations or pre - hearing statements were to be finalized and

filed, Mr. Early remained as Respondent's sole designated

representative pursuant to its Petition.

39. On September 18, 2012, two days before the final

hearing, Robert Resnick filed a N otice of A ppearance on behalf of

Respondent, along with a motion for continuance. The motion

contended that Mr. Resnick had "just been retained" and needed

additional time to prepare for hearing and to pursue settlement

with the Department. The motion was denied , because it failed to

demonstrate an emergency as required by rule 28 - 106.210.

40. On September 19, 2012, less than 24 hours before the

hearing was supposed to begin, Mr. Resnick filed an amended

motion for continuance, disclosing for t he first time that he was

scheduled to be in court in a criminal matter in Broward County

on September 20, 2012, and , thus , was unavailable for the final

hearing for which he had just been retained to represent

Respondent.

41. As detailed in the Second Order Denying Continuance,

the amended motion was found insufficient to demonstrate an

emergency. In particular, it was noted that Respondent's failure

to retain counsel until the last minute and Respondent's failure

to ensure that the counsel retained at the last minute was

actually available for the scheduled final hearing, did not

constitute emergencies.

42. At the outset of the final hearing, Mr. Early renewed

the request for a continuance, but offered nothing by way of

additional reasons or explanati on that would justify the

last - minute nature of his request, why Respondent did not attempt

to secure counsel sooner and why Respondent selected a lawyer at

the last minute who was not available to appear at the final

hearing. Instead, Mr. Early made ligh t of the delay , at one

point characterizing himself as " president of the

procrastinator s ' club ."

43. Mr. Early displayed a lack of candor in his effort to

delay the hearing by representing that counsel for the Department

and Mr. Resnick "had reached an agreement to continue between

themselves[.]" Counsel for the Department denied any such

agreement, stating that the Department's position was only that

it did not oppose Respondent's request for continuance, which was

not the same thing as agreeing to a j oint motion to continue.

Mr. Early then admitted that he had only sent an email to counsel

for the Department requesting an agreement, but that counsel for

the Department apparently "didn't receive my e - mail last night

where I had to ask him that. . . . I don't mean to jump the gun

on it."

44. The undersigned finds that Colorcars had full rein to

exercise its right to be represented or advised by counsel or

qualified representative throughout this administrative process.

Colorcars exercised its right by designating Mr. Early as its

representative in the Petition. Mr. Early had previously

represented Colorcars in a DOAH proceeding in which he requested

and attained "qualified representative" status. Mr. Early was

capable of serving as Respondent's rep resentative in this

proceeding. Even so, Colorcars has retained the right to be

advised by counsel throughout these proceedings, and Colorcars

was allowed to have its counsel of record prepare and file

Colorcars' PRO, despite not having appeared at the fi nal hearing.

45. The undersigned finds that Colorcars waived its right

to change the choice of representative it made in its Petition,

so as to be represented by late - appearing counsel at the final

hearing, by not attempting to exercise that right in a ti mely and

appropriate manner consistent with the governing procedural

rules. Colorcars was on notice of its representation rights for

months, just as it was on notice of the limitations on

continuances. Colorcars offered no reason why it could not have

ti mely retained an attorney who could be available on the

scheduled hearing day.

46. The totality of the circumstances, including the timing

of Colorcars' actions, suggests an inappropriate strategic

purpose of securing delay. That is particularly true si nce

Colorcars selected an attorney at the last minute who was not

available on the scheduled hearing date. Colorcars has

demonstrated a pattern of picking different counsel at the last

minute in order to attempt to trigger a delay, because the

counsel sel ected has a schedule conflict. Colorcars retained a

different lawyer before the March 7, 2012, informal revocation

conference, and then asked to delay that hearing because the

lawyer was not available that day. In telling fashion, Mr. Early

complained th at the Department would not agree to a second

postponement of the informal revocation conference when "we had

requested -- in a similar situation requested an extension of time

because counsel couldn't be there that day. Not Mr. Resnick, but

a different cou nsel." 7/

47. Whether by strategy or by the strangest of

coincidences, Colorcars' penchant for last - minute attempts to

change its representatives to attorneys with schedule conflicts

cannot be countenanced as a way to evade procedural deadlines and

requi rements imposed on all parties in the interest of the

orderly administration of justice in administrative proceedings.

CONCLUSIONS OF LAW

48. The Division of Administrative Hearings has

jurisdiction over the subject matter and parties to this

proceeding . §§ 120.569 and 120.57(1), Fla. Stat. (2012).

49. Petitioner has the burden of proving by clear and

convincing evidence the allegations in the Complaint on which

Petitioner relies to seek revocation of Respondent's Certificate.

Dep't of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932,

935 (Fla. 1996). As stated by the Florida Supreme Court:

Clear and convincing evidence requires that

the evidence must be found to be credible; the

facts to which the witnesses testify must be

distinctly remembered; the testimony must be

precise and explicit and the witnesses must be

lacking in confusion as to the facts in issue.

The evidence must be of such weight that it

produces in the mind of the trier of fact a

firm belief or conviction, without hesitancy,

as t o the truth of the allegations sought to

be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz

v. Walker , 492 So. 2d 797, 800 (Fla. 4th DCA 1983); accord

Westinghouse Electric Corp., Inc. v. Shuler Bros., Inc. , 590

So. 2d 986, 9 88 (Fla. 1st DCA 1991)("Although this standard of

proof may be met where the evidence is in conflict, . . . it

seems to preclude evidence that is ambiguous.").

50. In the Complaint, the Department invoked sections

212.18(3)(d) and 213.692, Florida Statute s (2011) , 8/ as statutory

authority to revoke Colorcars' Certificate.

51. Section 212.18(3)(d) provides as follows:

The department may revoke any dealer's

certificate of registration when the dealer

fails to comply with this chapter. Prior to

revocation of a dealer's certificate of

registration, the department must schedule an

informal conference at which the dealer may

present evidence regarding the department's

intended revocation or enter into a

compliance agreement with the department.

The departmen t must notify the dealer of its

intended action and the time, place, and date

of the scheduled informal conference by

written notification sent by United States

mail to the dealer's last known address of

record furnished by the dealer on a form

prescribed by the department. The dealer is

required to attend the informal conference

and present evidence refuting the

department's intended revocation or enter

into a compliance agreement with the

department which resolves the dealer's

failure to comply with this chapter. The

department shall issue an administrative

complaint under s. 120.60 if the dealer fails

to attend t he department's informal

conference, fails to enter into a compliance

agreement with the department resolving the

dealer's noncompliance with this chapter, or

fails to comply with the executed compliance

agreement.

52. Section 213.692 provides in pertine nt part:

(1) If the department files a warrant, notice

of lien, or judgment lien certificate against

the property of a taxpayer, the department may

also revoke all certificates of registration,

permits, or licenses issued by the department

to that taxpaye r.

(a) Before the department may revoke the

certificates of registration, permits, or

licenses, the department must schedule an

informal conference that the taxpayer is

required to attend. At the conference, the

taxpayer may present evidence regarding t he

department's intended action or enter into a

compliance agreement. The department must

provide written notice to the taxpayer of the

department's intended action and the time,

date, and place of the conference. The

department shall issue an administra tive

complaint to revoke the certificates of

registration, permits, or licenses if the

taxpayer does not attend the conference, enter

into a compliance agreement, or comply with

the compliance agreement.

53. Petitioner proved clearly and convincingly tha t

Respondent failed to comply with the requirements of chapter 212,

by failing to pay its substantial tax liability stemming from the

Final 2008 Assessment. Although Respondent initially challenged

the proposed assessment, Respondent did not go forward wi th its

challenge, choosing instead to dismiss its request for an

administrative hearing with prejudice.

54. Colorcars' voluntary dismissal with prejudice of its

petition challenging the proposed sales tax assessment had the

legal effect of rendering fin al the Department's earlier

free - form proposed assessment. See , e.g. , RHPC, Inc. v. Dep't of

HRS , 509 So. 2d 1267, 1268 (Fla. 1st DCA 1987)(voluntary

dismissal of a petition for administrative hearing to challenge

the denial of a certificate of need appli cation terminated

jurisdiction; dismissal of the petition means that the earlier

free - form denial of the application by the agency took force and

became final agency action). The 2009 Agreed Dismissal, executed

by Mr. Early , as Colorcars' qualified repres entative, recognized

as much by acknowledging that the assessment was final as of the

date that reconsideration of the NOPA was denied (August 19,

2008) and that the Final 2008 Assessment remained final, in

force, and effective in its entirety.

55. At tim es during the final hearing and in Colorcars'

PRO, Colorcars impermissibly strayed into arguments that seemed

to attack or question the validity of the Final 2008 Assessment,

despite Colorcars' prior abandonment of its right to challenge

that assessment. As made clear at the final hearing, Colorcars

is bound by its 2009 Agreed Dismissal, in which it voluntarily

gave up its right to challenge the Final 2008 Assessment. Thus,

no such arguments were considered.

56. It is undisputed that the Final 2008 Ass essment was a

determination that Colorcars had failed to comply with its

obligations under chapter 212, and as a result, Colorcars owed a

substantial sales tax debt to the Department, with penalties and

interest.

57. It is undisputed that as of the final hearing date,

Colorcars has never voluntarily paid one dime of the substantial

debt for sales tax deficiencies per the Final 2008 Assessment,

plus penalties and accruing interest.

58. Colorcars conceded this substantial tax liability under

chapter 212, bu t argued that "the Department is making this look

much worse than it is." According to Colorcars, its tax

liability is not so bad because the sales tax deficiencies were

due to a Department determination that Colorcars failed to

collect sales tax that it should have collected, as opposed to a

determination that Colorcars collected sales tax from customers ,

but did not pay the collected tax over to the Department. No

competent evidence was presented in the record of this case to

detail the nature of the ta x deficiencies imposed by the Final

2008 Assessment, but that detail is not necessary. The Complaint

charges Colorcars with failure to comply with an admitted

obligation imposed pursuant to chapter 212, by not paying the

Final 2008 Assessment. " The depar tment may revoke any dealer's

certificate of registration when the dealer fails to comply with

this chapter." § 212.18(3)(d). Colorcars' argument that this

admitted failure to comply with chapter 212 is not so bad is

rejected. With all due respect, Colo rcars' admitted failure to

pay one dime of the Final 2008 Assessment voluntarily in the

three and one - half years after Colorcars' withdrew its challenge

to the assessment, is certainly not good or compliant.

59. As additional , but related grounds for revo cation, the

Department relied on its filing of a tax warrant in the Sarasota

County official records to secure the Final 2008 Assessment after

the 2009 Agreed Dismissal. In addition, the Department relied on

its filing in 2010 of a judgment lien with the Secretary of State

to secure that same tax liability.

60. Colorcars does not dispute the Department's statutory

authority to revoke certificates of registration when the

Department has filed tax warrants and judgment liens in the

public records. Howeve r, Colorcars argued that , in this case,

the Department's tax warrant was issued too soon and should be

deemed "void ab initio."

61. In advancing this argument, Colorcars relied on section

213.731, which provides as follows:

In the absence of jeopardy to t he revenue,

no warrant or other collection action shall

be issued or taken until 30 days after

issuance to the taxpayer of a notice

informing him or her of such impending

action or notifying him or her that such

action is indicated or authorized in the

cir cumstances . The department shall, by

rule, provide procedures to afford the

taxpayer the opportunity to pay any tax,

penalty, or interest on which collection

action is sought which is not based on

jeopardy, or to protest the circumstances

underlying billi ng notices on which

collection action is sought, to the

department within 20 days after such notice

is issued. Such notice shall inform the

taxpayer of these available protest and

review rights. This section does not apply

to final assessments for which rights to

review under s. 72.011 have expired .

(emphasis added).

62. There is no question that Colorcars had notice of the

proposed assessment stemming from the audit of Colorcars'

2001 - 2004 operations, or that Colorcars was afforded the right to

protest the assessment, seek reconsideration, and then seek

review under section 72.011, Florida Statutes. Colorcars was

afforded those rights and exercised those rights, at least to the

extent of initially seeking review under chapter 120 in DOAH Case

No . 08 - 5442. However, as detailed above, Colorcars abandoned any

review of the assessment by voluntarily dismissing its petition

with prejudice. In the 2009 Agreed Dismissal, Colorcars

acknowledged the finality of the assessment as of August 19,

2008. Col orcars' review rights expired by virtue of Colorcars'

dismissal with prejudice. 9/ Thus, according to the last sentence

of section 212.731, the statute has no application to the tax

warrant issued on February 19, 2009 , and duly recorded in the

official rec ords of Sarasota County on February 20, 2009. The

tax warrant provides a separate, but related, basis for revoking

Respondent's Certificate. However, the primary basis remains the

underlying sales tax liability established by the Final 2008

Assessment, a s the tax warrant simply was a way to attempt to

secure and collect the sales tax liability.

63. Colorcars offered no argument regarding the judgment

lien certificate in evidence, which was asserted as a separate

basis for revocation. The judgment lien c ertificate was issued

and recorded with the S ecretary of State in 2010 to secure

Colorcars' tax liability stemming from the Final 2008 Assessment.

Pursuant to section 213.692(1), issuance of this judgment lien

certificate against Colorcars provides a sepa rate basis for

revoking Colorcars' Certificate. As is true for the tax warrant,

however, the underlying tax liability remains the primary basis

for revocation in that the judgment lien certificate represents

another means to secure and attempt to collect on the underlying

sales tax liability that was established by the Final 2008

Assessment.

64. The Department proved clearly and convincingly that

Colorcars failed to pay sales taxes collected from customers when

they were due at the time the December 2011 and January 2012

sales tax returns were filed. As to these unpaid taxes,

Colorcars' knowing failure to pay is tantamount to theft of state

funds -- this is the "bad" kind of sales tax liability described by

Colorcars (when trying to distinguish its liabilit y for the

substantial Final 2008 Assessment that remains unpaid). See

§ 212.15 . Here, Colorcars argued that the focus should be on how

"minor" the amount is (instead of dwelling on how bad this type

of tax liability is). But Colorcars admittedly collect ed a total

of $1,401.16 of sales tax from its customers for the purpose of

paying those sales tax dollars over to the Department. These

dollars became state funds the moment they were collected, and

Colorcars was required to pay them over the moment they were due.

§ 212.15.

65. Colorcars sought to excuse its admitted failure by

claiming impossibility caused by the Department's freeze on a

bank account set up for electronic tax payments. Colorcars

argued, but failed to prove, that it believed that it cou ld only

pay those taxes electronically. Indeed, the evidence was to the

contrary. Moreover, Colorcars itself was on notice at least by

March 7, 2012, that the Department would accept "certified funds"

to pay the sales tax liabilities established by the D ecember 2011

and January 2012 returns. Colorcars never attempted to make

payment to the Department, and at least by March 7, 2012, that

failure to pay over monies collected from customers, plus

penalties and accrued interest, was knowing and in bad faith.

These additional violations of Colorcars' obligations under

chapter 212 provide additional grounds to revoke its Certificate.

66. The Department did not meet its burden of proof with

regard to the claimed failure to pay a penalty and fee assessed

for a late - filed corporate tax return. No clear evidence was

presented to establish the allegation that the 2009 corporate tax

return was filed late. A worksheet summary prepared from

undisclosed source information several years after the claimed

late filing w as insufficient to prove that the 2009 corporate tax

return was filed late.

67. The Department complied with the conditions precedent

to revoke a certificate of registration, set forth in sections

212.18(3)(d) and 213.692. The Department scheduled an in formal

conference , of which Colorcars was given notice and told to

attend. The Department accommodated Colorcars by delaying the

informal conference for two months and resetting the conference

for the specific date requested by Colorcars. Colorcars was

i nformed of the Department's intended action and given the

opportunity to present evidence.

68. Colorcars offered a myriad of arguments apparently

intended to establish that the Department should be compelled to

enter into a different, more favorable com pliance agreement than

offered at the informal conference. Along this vein, Colorcars

complained that the Department put an improper personal guarantee

clause in the draft compliance agreement, which Mr. Early would

not sign. Colorcars asserted in its PR O that the parties had

actually reached a different oral agreement without any personal

guarantee (an assertion unsupported by any credible record

evidence) and that the alleged oral agreement should prevail. In

addition, Colorcars argued that the Departm ent was required to

reduce Colorcars' sales tax liability because the debt should

have been deemed uncollectable. Colorcars argued in its PRO that

the Department should be faulted for not investigating Colorcars'

financial status.

69. No competent evid ence was presented that would allow a

finding to be made as to the reasonableness under the

circumstances of the Department's exercise of discretion in

crafting the draft compliance agreement that was offered to

Colorcars. Colorcars was on notice that the informal conference

was its opportunity to present evidence; if evidence was not

presented, then Colorcars did not avail itself of the opportunity

and cannot point the blame in the Department's direction for not

conducting an investigation. See , e.g. , Fl a. Admin. Code

R . 12 - 3.003 (specifying procedures for requesting compromise

based on collectability, including requirement that taxpayer

submit audited financial statements to support the request).

Moreover, it is far from clear that evidence of a comprom ised

financial condition alone would necessarily lead to an agreement

to reduce the debt, as opposed to, for example, asking for a

personal guarantee, or, as authorized in section 212.14(4),

requiring the taxpayer to post security in the form of cash

depos it, bond, or other security as a condition to retaining its

Certificate.

70. The Department exercised its discretion to craft a

compliance agreement that made provision for the retirement of

Colorcars' tax obligation on an installment basis on terms tha t

were in the state's best interests (i.e., with Mr. Early's

personal guarantee). The draft compliance agreement was offered

to Colorcars and rejected. Mr. Early's refusal to sign the

offered compliance agreement for Colorcars allowed the Department

to p roceed to issue the Complaint to pursue revocation of

Colorcars' C ertificate.

71. As a final point of challenge, Colorcars contends that

this administrative proceeding violated section 213.015(3), part

of the Taxpayers' Bill of Rights, 10/ by depriving Col orcars of its

right to counsel at the final hearing. Section 213.015(3)

provides that the revenue statutes and Departmental rules

guarantee the following to taxpayers:

The right to be represented or advised by

counsel or other qualified representatives at

any time in administrative interactions with

the department, the right to procedural

safeguards with respect to recording of

interviews during tax determination or

collection processes conducted by the

department, the right to be treated in a

professional manner by department personnel,

and the right to have audits, inspections of

records, and interviews conducted at a

reasonable time and place except in criminal

and internal investigations (see ss. 198.06,

199.218, 201.11(1), 203.02, 206.14,

211.125(3), 2 11.33(3), 212.0305(3),

212.12(5)(a), (6)(a), and (13), 212.13(5),

213.05, 213.21(1)(a) and (c), and 213.34).

This statute does not, by its terms, purport to establish rights

of litigants in administrative hearings under chapter 120, but

rather, clarifies the rights of taxpayers in their direct

dealings with the Department under the referenced statutes.

72. By a different statute, parties to administrative

proceedings are afforded the right to be self - represented or

represented by counsel or qualified rep resentative.

§ 120.57(1)(b). There is no guaranteed right of counsel in

administrative proceedings. See , e.g. , Thompson v. Dep ' t of

Prof ' l Reg . , 488 So. 2d 103, 105 (Fla. 1st DCA 1986)

(constitutional guarantee of right to counsel is not applicable

to a dministrative proceedings involving the revocation of

licenses issued by the state to those engaged in regulated

businesses and professions); accord Santacroce v. State, Dep't of

Banking and Fin. , 608 So. 2d 134, 136 (Fla. 4th DCA 1992).

73. Once informe d of its right to represent itself or to

obtain representation by counsel or a qualified representative, a

party to an administrative proceeding may be held to its

election. Id. In other words, these rights, as is true for

other rights, are subject to be ing waived, including by the

failure to exercise one's rights in a timely manner with due

consideration for the orderly conduct and administration of the

proceeding in question.

75. In this case, Colorcars was given multiple notices of

its right to be sel f - represented or represented by counsel or

qualified representative. Colorcars made its election in its

Petition and then maintained that election throughout the entire

pre - hearing preparation phase. Colorcars was informed of the

limitations on continuan ces. Colorcars waived its right to

change its election by not timely seeking to change the election

and having no legitimate excuse for its last - minute request.

76. Rule 28 - 106.210 provides appropriate parameters for

DOAH Administrative Law Judges (ALJ ) to exercise their discretion

in ruling on motions for continuance. See Milanick v. Osborne ,

6 So. 3d 729 (Fla. 5th DCA 2009) In that case, in a DOAH

administrative proceeding, a former mayor was awarded attorney's

fees and costs for having to defend hi mself against an ethics

complaint filed against him by Alexander Milanick. Milanick

appealed the F inal O rder issued by an ALJ that assessed

attorney's fees and costs against him. One point argued on

appeal was that it was an abuse of discretion for the A LJ to deny

his motion for continuance to retain counsel. 11/ The court

affirmed the denial of Milanik's motion for continuance, finding

no abuse of discretion:

A motion for continuance is addressed to

the sound judicial discretion of the trial

court and ab sent abuse of that discretion its

decision will not be reversed on

appeal. . . . The same discretion is vested

in the ALJ. Fla. Admin. Code R. 28 - 106.210.

77. Factors to be considered in exercising discretion on a

motion for continuance include wheth er the cause of the request

for continuance was unforeseeable and not the result of dilatory

practices. See , e.g. , Krock v. Rozinsky , 78 So. 3d 38, 41 (Fla.

4th DCA 2012); Cole v. Cole , 838 So. 2d 1237, 1238 (Fla. 5th DCA

2003). As such, last - minute requ ests for continuance to retain

or change counsel have been rejected, absent proof that the

last - minute nature of the request is caused by some kind of

emergency. For example, in Cole , the court affirmed the denial

of a request to continue a trial where ap pellants' original

lawyer was granted leave to withdraw shortly before the trial was

scheduled. When new counsel appeared of record and moved for

continuance, the court denied the motion. On appeal, the court

affirmed, noting that "appellants must certai nly have known that

a trial was coming, yet they took no action to secure new counsel

until the last moment." Id.

78. In Ryan v. Ryan , 927 So. 2d 109, 111 - 112 (Fla. 4th DCA

2006), the court held that a last - minute motion for continuance

because of new c ounsel should be held to a standard that requires

proof of an emergency that is not one of the party's own

creation:

It was the former wife who made the decision

to terminate her attorney. The need to find

a new lawyer was not caused by the illness,

deat h, or disability of her prior lawyer or

of a critical trial witness. . . . These

are the circumstances under which trial

courts have been found to have abused their

discretion; not when the emergency is of the

client's creation . (emphasis added).

79. I t is appropriate, in considering a last - minute motion

for continuance, whether parties were informed in a pre - trial

order that such motions are required to adhere to specified

terms. Taylor v. Mazda Motor of Am . , Inc. , 934 So. 2d 518, 521

(Fla. 3d DCA 200 5) (it was within the trial judge's discretion to

deny a motion for continuance, in accordance with the terms of

the pre - trial order limiting such motions . ).

80. The right to counsel is not unbridled, even in criminal

cases, and may be limited in appropri ate circumstances. Thus, in

Evans v. State , 741 So. 2d 1190 (Fla. 4th DCA 1999), the court

affirmed the judgment and sentence against a criminal defendant,

rejecting the argument that the trial court reversibly erred by

denying a motion for continuance on the day of trial, when the

public defender informed the judge that the defendant no longer

wished to be represented by him, and the family wanted to retain

a private attorney. The court held:

[T]he defendant's right to select his own

private attorney is not unbridled and may

be limited in favor of considerations of

judicial administration, or if made in bad

faith for the sake of arbitrary delay or to

otherwise subvert judicial

proceedings. . . . The freedom to have

counsel of one's own choosing may not b e

used for purposes of delay[.] . . . Last

minute requests are disfavored.

Id. at 1191 (internal citations, quotation marks omitted).

81. As set forth in the Findings of Fact, Respondent's

belated attempt to add counsel was not due to a bona fide

emerge ncy, such as an unforeseeable hospitalization, death, or

incapacity. Instead, it was situation of Respondent's own

making, despite ample notice of the limitations on last - minute

continuances. Respondent waived its right to timely and

appropriately exerci se its right to add counsel . The request to

delay the final hearing because of the last - minute appearance

filed by Mr. Resnick, after the pre - hearing preparation phase was

closed and all deadlines had passed, whose first and only

activity of record was to file a motion for continuance because

counsel had a schedule conflict making him unavailable for the

hearing he was just retained for, must be rejected as a

transparent attempt by Respondent to secure delay.

RECOMMENDATION

Based on the foregoing Finding s of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Revenue revoke the

Certificate of Registration held by Respondent, Colorcars

Experienced Automobiles, Inc., now known as Experienced Vehicles,

Inc.

DONE AND ENTERED this 13th day of December , 2012 , in

Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of December , 2012 .

ENDNOTE S

1/ John T. Early, III, uses the suffix "esq." to indicate that he

is an attorney license d to practice in another state, but he is

not licensed to practice in Florida. Mr. Early prepared and

signed the Petition for Formal Administrative Hearing in which he

represented that "John T. Early, III, esq. . . . shall be the

representative of the [Re spondent]."

2/ Mr. Resnick filed a Notice of Appearance on behalf of

Respondent on September 18, 2012. Mr. Resnick did not appear at

the final hearing on September 20, 2012, on Respondent's behalf.

Instead, Respondent was represented by Mr. Early, Res pondent's

previously designated representative. Notwithstanding

Mr. Resnick's failure to appear at the hearing, Mr. Early was

informed that Mr. Resnick was still considered an attorney of

record for Respondent and that Mr. Resnick could prepare and

submit the post - hearing proposed recommended order on

Respondent's behalf. Mr. Resnick has not moved to withdraw, and

thus, still appears as attorney of record for Respondent.

Mr. Resnick's signature does not appear on Respondent's proposed

recommended order; it is unknown whether Mr. Resnick prepared or

assisted in the preparation of the post - hearing filing, as he was

permitted to do. Mr. Early represented at the final hearing that

Mr. Resnick would remain active in the case despite not appearing

on September 20, 2012.

3/ Included in the DOAH file for Case No. 08 - 5442 is a request

filed by Mr. Early to be recognized as a qualified representative

for Colorcars and an affidavit executed and filed by Mr. Early in

support of his request. An Order was entered ac cepting Mr. Early

as qualified representative in that proceeding based on a

determination that "it appears Early is qualified to appear in

this administrative proceeding."

4/ The Department's witness testified that the amount levied was

just over $62,0 00.00. Mr. Early testified that $64,000.00 was

levied. No evidence was offered to pinpoint the precise amount,

but as explained below, it is unnecessary to do so for purposes

of resolving the issues presented in this proceeding.

5/ The testimony by the Department's witness that Colorcars would

have been allowed to pay the collected sales taxes by some means

other than electronically was corroborated by the draft

compliance agreement in evidence offered by the Department to

Colorcars at the informal conf erence held on March 7, 2012, which

is discussed in greater detail below. The draft compliance

agreement included a requirement that "Mr. Early will pay

outstanding liabilities for sales and use tax 12/2011 and 1/2012

by close of business 12 March 2012 in certified funds ."

(emphasis added). Thus, at least by the informal conference held

on March 7, 2012, Mr. Early knew that the Department would accept

a certified check or other form of certified funds to satisfy

Colorcars' outstanding sales tax liabiliti es for December 2011

and January 2012.

6/ The Department's witness testified that he created a worksheet

on March 5, 2012, to summarize Colorcars' tax liabilities. He

explained the entry on the last worksheet page as a penalty

assessed because Colorcar s' 2009 corporate income tax return was

filed late. However, the witness did not describe the sources of

information he used to enter this worksheet item . T hus, it is

unclear whether he relied on information conveyed to him by

others or whether he person ally reviewed documentation showing

the transmission date and receipt date of the 2009 corporate

income tax return. In the face of Colorcars' belief that the

return was timely transmitted, the Department's summary document

was insufficient to clearly and convincingly prove the charge.

In contrast, even though the underlying documents establishing

the unpaid sales taxes due with the December 2011 and January

2012 returns were not offered in evidence, the Department's proof

sufficed, in large part , because Colorcars did not dispute the

fact or amounts of its liability, admitting that these taxes

remained unpaid as of the hearing date.

7/ Mr. Early was attempting to explain the problems he had with

the draft compliance agreement, when he brought up the fact that

he retained another lawyer to represent Colorcars at the

rescheduled March 7, 2012, informal conference, and then asked to

postpone the conference because the newly - retained lawyer was not

available that day. Mr. Early explained that he had a proble m

with a clause in the draft compliance agreement because,

according to Mr. Early, it stated that each party was advised by

counsel, when that was not true because Colorcars could not be

represented by counsel that day. However, the clause that

Mr. Early referred to actually said that the parties "have had

the opportunity to consult with counsel prior to executing this

agreement." Just as Colorcars and Mr. Early had every

opportunity in this DOAH proceeding to consult with and be

represented by counsel, C olorcars and Mr. Early had the

opportunity to consult with counsel at the informal conference,

but chose not to retain one who was available on the rescheduled

conference date selected by Mr. Early two months in advance.

Rights and opportunities can be wa ived and squandered when they

are not timely or appropriately exercised.

8/ Unless otherwise specified, references herein to the Florida

Statutes are to the 2011 codification, as the law in effect when

the Department initiated the revocation process, an d when the

alleged violations occurred (with the exception of the tax

deficiency assessment rendered final in August 2008 by Colorcars'

dismissal of its administrative hearing request).

9/ Colorcars argues in its PRO that DOAH Case No. 08 - 5442

resulted in a "judgment , " which was subject to a 30 - day window to

appeal. To the contrary, the administrative proceeding was

closed by an Order Closing File after the 2009 Agreed Dismissal

was filed. As recognized by RHPC , supra , the legal effect of

Colorcars' v oluntary dismissal with prejudice was to divest

jurisdiction and render the proposed agency action (dated

August 19, 2008) final. Colorcars voluntarily abandoned its

review rights .

10/ The Taxpayers' Bill of Rights, codified in section 213.015,

was en acted pursuant to the Florida Constitution, Article 1,

section 25, which provides as follows: " By general law the

legislature shall prescribe and adopt a Taxpayers' Bill of Rights

that, in clear and concise language, sets forth taxpayers' rights

and respo nsibilities and government's responsibilities to deal

fairly with taxpayers under the laws of this state."

11/ A review of the DOAH docket in the underlying administrative

case shows that the motion for continuance was filed four days

before the final hearing was scheduled to take evidence on the

amount of attorney's fees and costs, which were in dispute. See

Osborne v. Milanick , DOAH Case No. 07 - 3045FE (Emergency Motion to

Continue, September 24, 2007; Hearing held September 28, 2007).

COPIES FURNIS HED:

Marshall Stranburg ,

Interim Executive Director

Department of Revenue

Post Office Box 6668

Tallahassee, Florida 32314 - 6668

Nancy Terrel, General Counsel

Department of Revenue

Post Office Box 6668

Tallahassee, Florida 323 14 - 6668

John Mika, Esquir e

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Robert B rian Resnick, Esquire

Post Office Box 1872

Boca Raton, Florida 33429 - 1872

John T. Early, III

Colorcars Experienced Auto, Inc.

2311 Tamiami Trail

Nokomis, Florida 34275 - 3474

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 t hat

will issue the Final Order in this case.