Petition — Florida Boatsmen Ass'n v. Department of Revenue

Sup:<me Court, U. Se

FiLlLED

JUN ®% 977

No. A-848 * a

IN THE 4

SUPREME COUR

OF THE UNITED STATES

OCTOBER TERM 1976

“1861

Florida Boatsmen Association, et als.

Petitioners

V.

Department of Revenue

Respondents

On Petition for Certiorari from the Judgment of the

Supreme Court of Florida denying Certiorari to the

District Court of Appeal, First District of Florida,

Appendix Exhibit 9, Page 48.

PETITION FOR WRIT OF CERTIORARI

David W. Palmer,

David W. Palmer II,

Attorneys for Petitioners

P.O. Box 95

Crestview, Fla. 32536

INDEX Page

IN, 756.665 00 0066609 00-60060060006ce0scebeesesnconsseé 5

ee ee ieee dddkihedesawbenancedeede tenes 6

a. Bice ced eae ehsecesseanekaesamwesdateenstc 7

eS cin i dad eee pened bhekeobeoeengenensenaensene 9

eS a dn hdd vedere dabnsssbhenedoéuubieesesivbe 9

EE, 6 5b ccci de caseveesenntses ddveduasudn 12

itn. Mich tedueene denhehenekeokens'eesées 600 eeeneaeuas 16

ihe cane ds cneeehend nhidonsnanenediened Part 2, Page |!

Opinion of the District Court of Appeal, First District, of November 26, 1975,

reported at 324 S. (2) 651 wherein the Supreme Court of Florida denied

Petition for Certiorari. Appendix Exhibit 9 Page 48; Appendix Exhibit 2 Page

6 (Sustaining retrospective tax)

Opinion in Davis v. Askew 343 So. (2) 1329, March 30, 1977, applying

estoppel and denying retrospective tax. Other cases appear in the Table of

Cases, infra.

TABLE OF CASES a

a Page

Ade CG, RGR, TED E. SECO e OU SU ccc cecvcccesccccsceseseus A-73

Ahrenholz v. Green, 127 So. (2) 139 (Tax denied) ................4..

American Waterways v. Askew 335 F. Supp. 1241 ................. A-23

Bertram v. Gooom 152 Se. (2) 24 Go. .... 2... cc cccccvccccccccccces

City of Miami v. Kayfetz 30 So. (2) 524 .. 0.0... ccc ccc eee eens A-73

City of Naples v. Conboy 182 So. (2) 412 .. 2... ce eee

Complete Auto Transit v. Brady No. 76-29 .... 2... 0.0 eee 6

I EIN, « ccc ccciccccesécecesecesdeseees

Davis v. Askew 343 So. (2) 1329... . 2.20... eee ae 7, 8, 10, 13, A-4, A-50

Deltona Corp. v. Bailey 336 So. (2) 1163 ©... 2...

EEE ee re ee

DOR v. Brookwood Assoc. 324 So. (2) 184,187................ 12, A-4, A-73

DOR v. Camp Universe 273 So. (2) 148, 149... 2... een

es SME MEGIED coc ccccccccccccccsceccccccesese

DOR v. Kelly Boat Service 210 So. (2) 266 .............. 7, A-14, A-28, A-82

DOR v. Kelly Boat Service 324 So. (2) 651 .............---5.. 5, 8, 13, A-48

DOR v. Pelican 257 So. (2) 56... ... 6.6 ccc cece eens A.44, A-45, A-SI

Edgewater Drugs v. Jax Drugs 138 So. (2) 525 ...... 2. eee es

Dominion Land & Title v. DOR 320 So. (2) 815 ...... 2... 6.6. eee eee

Florida Forest and Park Service v. Strickland 18 So. (2) 251 ............

Florida Rules of Civil Procedure, Rule 1.220 .......... 0.0.0.6 6 00005. 9,14

Florida Rules of Civil Procedure, Rule 1.230........ 2... .....2000005. 14

Flood v. Kuha et als 407 U.S. 258;32 L.Ed. (2)728 ..............0..04..

Gay v. City of Coral Gables 47 So. (2) 751... 2... cee A-76

2

GMC v. Dist. of Columbia 84 S.Ct. 1564;377 US 436 12 L.Ed (2) 439...... 6

A-17, A-19

ee I ebb cn cgvescccecacccoccccescncessss A-76

Guardianship of Irving 297 So. (2) 331... 1... 6... ee eee ecceeeeeeeeee

Hardy, Hardy & Assoc. v. DOR 308 So. (2) 187 ... 2... 6.6 c cece eens

Henderson v. Gay 49 So. (2) 32S... 0... cece cece cece eee eneeeeees

ey NN «0 b5 wes eanedevecocencsssonseecoccene 13, A-22

Interlachen Lake Estate v. 304 So. (2) 43S ..... 2.0... c cece cece eee eees

James v. Dravo 302 US 134;82 LED 155;58 S.Ct. 208 114 A.L.R. 318 . .6, A-82

Kerashs v. DGliis 263 So. (2) S79, SES 20 n cic ccccccccccccccccccccces

Lee v. Quincy State Bank 173 So. 909.0... 6c cece eens A-75

Leadership Housing v. DOR 336 So. (2) 1239 ..... 2... -- eee cece eee

Bh ET odesccnvsdvecveccowecccessecccescecseese

Maas v. Dickinson 195 So. (2) 193 .. 2... 6... c cece cece eeee A-82

McCarty v. Lichtenberg 67 So. (2) 65S... . «6... eee eee ees

McGowan v. U.S. 296 F. (2) 252... 0... 6c ccc eee eens 14, A-19, A-22

Metropolis Pub. v. Lee 170 So. 422... 1... cece cc cece eeeee A-75

Miller v. Standard Nut Marg. 284 US 498;S2 S.Ct. 260 76 L.Ed. 422

, Sac cccccccccscccccvsccccccccsecees A-22, A-74

Mills v. Korash 249 So. (2) 765 ... 2... 6. ccc cece eee eee w ne eenes A-81

Morrill v. Jones 106 US 466; 1 S. Ct. 423; 27 L.Ed 267 ........... A-22, A-75

Morris v. Williams 199 So. (2) 747 00... occ cece eee e ee enes

EE oc ccddccdocncovecsccctecercescccccccese A-73

North Amer. Co. v. Green 120 So. (2) 603 ... 2... 6. ec cee eens

Oklahome County v. Queen City Lodge 156 P. (2) 340............... 13, A-S

Overstreet v. Ty-Tan 48 So. (2) 188 2.00... ccc cece cece een eees

sc cne anc eeeeendhbesbecetscaseceuess

Pelican Ship Corp. v. DOR 287 So. (2) 93... 2... ccc cc cee eee eens

Pauline v. Hardester 306 So. (2) 125 .. 0.0... cece eee neee

SAL ry. v. Gay 3S So. (2) 403... 2.22.0 cece ccc e cece eee eee teens A-76

Saniths v. U.S. I90 F. Senpm. GO... 2. ww cccccccccccccccccccees A-10, A-22

Smith v. Williams 160 Fla. S80; 3S So. (2) 844 .... 2... eee eens

Star Employment v. Fla. Ind. Com 122 So. (2) 174... ... 2... eee eee eee

State v. Beardsley 94 So. 660 (Deny Tax) ......... 2.26666 e cee eeeee A-62

State ex rel Devlin v. Dickinson 305 So. (2) 848 ................55. 15, A-83

State ex rel Housing Auth. v. Kirk 231 So. (2) .................505 A-81

State ex rel DOR v. Peterson Outdoor Adv. 296 So. (2) 120 .......... A-73

State ex rei. Riverside Bank v. Green 101 So. (2) 805, 808 .............

State ex rel. Tampa Electric v. Gay, 40 So. (2) 225, 229.............. A-81

State ex rel. Weinberg v. Green, 132 So. (2) 761 ...........-..000000-

ee Peterson Outdoor Advertising Co., 296 So. (2)

SED jccinunteceatninadbdeeiiinnwenky 6460 esesteesesess

Straughn v. Kelly Boat Service 210 So. (2) 266 ............... 13, A-5, A-11

Toomer v. Witsell 334 U.S. 385; 410; 92 L. Ed. 1460; 68 S. Ct. 1156 . . .6, A-23

Thompson v. Clifford 408 F. (2) 169... 00.6... cece nee

U.S. v. Calif. 14 L. Ed. (2) 2968S S.Ct. 1401.2... cece eee

U.S. v. Isham, 17 Wall. 496, 504; 21 L. Ed. 728 .... 2.2.6... eae A-75

U.S. v. Southeast Underwriters, 332 U.S. 533; L. Ed. 1440; 64 S. Ct. 1162

A-23, A-78

es

oe = +

\

Ww

ee i ad ea es ec uneeaee

i rn, «tan oc ced ewenbeeseeoenees A-22

Utley v. City of St. Potersbburg, 163 So. S23... 0. ccc ccccccccccccccess

Western Livestock v. Bur. of Rev. 303 U.S. 250, 22 L. Ed. 823; 58

Williams et als. v. Ferrentino, 199 So. (2} 504... 20... ec ees

Williams v. Whitman 116 Fla. 196; 156 So. 70S, 709 ..............04..

Wittington Condominiums Apartments, et al., v. Braemar Corp., 313 So.

te aeehaGdeeaie hes ulde decdcecasiseuaneasvicenees

STATUTES

i 6

Florida Statutes 212.02 (16 and 17).................. 7,9, A-11, A-57, A-72

ES a 7,9, A-22, A-41, A-72

ie Loe oc aeleecueeehicdiseesensesenen

Florida Statutes 212.08 (9 and 10) ................ 02.000 eee A-17, A-57

2 ok) a Seige Saueesesaueds 8S eeas

i oo cwdis Saubaneuets bend ouen

a ol an eh emheenetseahomth

eT. J). ss ay Gesebensesense souls A-29

ee. i. es hs ee eeeceke emesien en A-8, A-33

a a eeurcee

Teen ee ee ckeenesebaen A-60

oon whidee Seatn dene nee A-23

EY ee ea gee

se nc cee ses beer 12, 16, A-22, A-23, A-77, A-79

tS lg uadwereheenie sate A-30

EES Ee ce Se Oo ne re )

MISCELLANEOUS

de ween denen bases 13, A-73

Nee ee eeebeeceeeenseesees

Nee Le acd de cebeseeseesseese a a

21 CJS Courts Section 194 Law of Case ....... 22.0 cece

En A-74, A-81

82 CJS Section 396 (b) Statutes ...................... 13, A-74, A-76, A-81

SI UG GUGM, once cscs ccccccccccsceccccecceces

a a eemebenbesces<

neo eeeeseseeeese A-60

Ee re A-12

Florida Administrative Code, Section 12. A-1.05(4)(n)............. 14, A-S

Judgments, 50 CJS 592... 2... ee cece eee eee erence teen ee enenees

Judgments and Decrees, 19 Fla. Jur. Section 111 ........--+++++e05s-

51 Am Jur. Taxation Section 310, 316, 650... .... 2... 0. eeees 7, A-74, A-81

Sales and Use Tax, 68 Am Jur 2d, Section 20 ....... 6... ee eee ceeeeeee

Sales and Use Tax, 68 Am Jur 2d, Section 34 ..... 2.6... cece ee eeeees

Statutes 82 CJS Section 311, et seq... ..- 6... ee eee ee ener eee eeeeees

United States Constitution, Article 1, Section 8, Clause 3 (Interstate

GemNND onc cvcccccsccccvccessoocsocosesess A-13, A-19, A-21, A-23

Words and Phrases cites many case on Estoppel, Res Judicata and Stare

lee... cccccccccecedeevede ceueeecnecceeeseetosuaeneneneeee

-

IN THE \

SUPREME COURT OF THE UNITED STATES

October Term 1976

No. A-848

Florida Boatsmen Association, et als.,

Petitioners,

Vv.

Department of Revenue,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

To the Honorable, the Chief Justice and Associate

Justices of the Supreme Court of the United States.

Florida Boatsmen Association, Kelly Boat Service, Inc.,

and others, the petitioners herein, pray that a writ of

certiorari issue to review the judgment of the Supreme

Court of the State of Florida entered in the above-entitled

case of January 10, 1977, Appendix Exhibit 2, Page 6,

(denying motion for rehearing of petition for certiorari

declining review of the decision by the District Court of

Appeal reported as Department of Revenue v. Kelly Boat

Service, Inc., 324 So. (2) 651, dated November 26, 1975

rehearing denied January 28, 1976, Appendix Exhibit 9,

Page 48.

OPINION BELOW

The opinion of the District Court of Appeal, First

District, is reported as Department of Revenue v. Kelly

Boat Service, Inc., 324 So. (2) 651 and is printed in

Appendix Exhibit 9 hereto, infra, Page 48. The Judgment

of the Circuit Court of Leon County, Florida, No. 73-1494

formerly Okaloosa County No. 72-2479, is printed in

Appendix Exhibit 9 hereto, infra, Page 48. The Supreme

Court of Florida denied certiorari and denied rehearing.

Appendix Exhibit 2, Page 6.

JURISDICTION

Jurisdiction is invoked under 28 U.S.C.A. Sec. 1257.

The judgment of the District Court of Appeal (Appendix

Exhibit 9, infra, Page 48) was entered on November 26,

1975. A timely petition for rehearing was denied on

January 28, 1976. (Appendix Exhibit 9, infra Page 48.)

The time for filing this petition was extended until June 9,

1977. Appendix Exhibit 1, Page 3.

Kelly II (as designated in Davis v. Askew 342 So. (2)

1329, Appendix Exhibit, Page 50) one of the petitioners at

bar, according to the decision from which this appeal is

taken, reported as Department of Revenue v. Kelly Boat

Service, Inc., 324 So. (2) 651, Appendix Exhibit 9, Page

48, denies to Kelly the equal protection of the laws as

accorded to Davis, Appendix Exhibit 10, Page 50,

contrary to the provisions of the Fourteenth Amendment.

Kelly must pay the tax while Davis is not required to pay

the tax.

As the evidence shows, since 90 per cent of the day’s

fishing is done on the high seas and beyond the borders of

the State of Florida, the refusal to prorate, or allocate, the

tax to that portion of time actually spent in Florida, is a

denial of due process of law.

GMC v. Washington 84 S. Ct. 1564; 377 U.S. 436;12

L.Ed. 439

Toomer v. Witsell 334 U.S. 385;410;;92 L.Ed. 1460:68

S.Ct.1156

James v. Dravo 302 U.S. 134; 82 L.Ed. 155;58 S.Ct.

208.

Complete Auto Transit, Inc. v. Brady No. 76-29.

7

Taxation 51 Am.Jur Sec. 58, 61

Petitioners’ privileges are abridged when a citizen from

Tennessee boarding a boat in Pensacola is required to pay

a tax while the same citizen, fishing in the same area on

the high seas, boards a boat in Mobile but is not required

to pay any tax.

The imposition of the tax as here proposed is an undue

burden on interstate commerce contrary to the provisions

of the Constitution. The trial court so held in Kelly I,

Appendix Exhibit 3, Page 7.

The attempted tax is in violation of the Admiralty

Clause of the Constitution.

QUESTIONS PRESENTED

1. Does the Florida Statute 212.04, 212.02 (16 and 17),

Appendix Exhibit 11, Page 57, impose any tax on fishing

on the high seas and beyond the borders of the State of

Florida? If this question is answered in the negative the

major issue will have been settled. The Circuit Court in

Kelly No. 15,117, on June 24, 1966, held the law did not

impose any tax and that the statute was in conflict with

the Commerce Clause. On appeal this judgment was

affirmed and rehearing denied June 4, 1968, Straughn v.

Kelly 210 So. (2) 266, Appendix Exhibit 5, Page 11,. This,

we think, became the ‘‘law of the case.’’ The question is

‘“‘res judicata’. It is ‘‘stare decisis’’. The doctrine of

‘‘estoppel’’ has been properly applied in Davis, Davis v.

Askew 343 So. (2) 1329, Appendix Exhibit 10, Page 50.

This was considered to be the settled law for almost

four years or until after January 6, 1972, when, based on

an erroneous statement of fact and contrary to the

evidence, in effect, the court held that ‘‘fishing’’ was an

‘*admission’’ and taxable as such.

Department of Revenue v. Pelican Ship 257 So. (2) 56,

Appendix Exhibit 8-a, Page 44. Pelican did not hold that

8

the tax was retrospective. It was in the case at bar, DOR

v. Kelly Boat Service No. Y-315, reported at 324 So. (2)

651, dated November 26, 1975, Appendix Exhibit 9, Page

48, rehearing denied January 28, 1976, that the court

imposed the tax retrospectively. The Supreme Court of

Florida declined to review this case so this petition

followed, Appendix Exhibit 2, Page 6. On March 30, 1977,

the District Court, but different panel, applied the

doctrine of ‘‘estoppel’’ and denied the retrospective tax in

Davis v. Askew, 323 So. (2) 1329, Appendix Exhibit 10,

Page 50.

If, contrary to Kelly I, 15,117, Appendix Exhibit 3 and

5, Pages 7 and 11, the tax is sustained, and, if contrary to

Kelly II, Appendix 10, Page 50, but in accord with Davis,

supra, the retrospective aspect of the tax is denied,

several questions are presented. In the complaint,

Appendix Exhibit 6, Page 13, we presented twenty-two

questions to the court. The trial court in the case at bar,

followed Pelican, sustained the tax, but denied the

retrospective aspect, Appendix Exhibit 8, Page 34. R.

173-183. In the Cross Appeal to the District Court appear

seventeen assignments of error. R. 192, Appendix Exhibit

8-c, Page 47. When this case was appealed to the

Supreme Court as No. 48,865, similar errors were

assigned. '

In the event that the tax is sustained and question 1,

supra, is answered in the affirmative, by this reference we

here incorporate and make a part hereof the other sixteen

errors assigned, Appendix Exhibit 21, Page 87. These

questions include, but not limited to, due process of law,

equal privileges, uni >rmity in taxation, the maritime and

commerce clauses, validity of Florida Statutes, Court

Rules, the authority of administrative officials to

promulgate regulations which expand the statute to make

‘“fishing’’ taxable when it is not mentioned in the statute,

etc.

9

2. If the Statute, Appendix Exhibit 11, Page 5/7,

imposes the tax, may the tax be collected retrospectively,

contrary to Davis v. Askew, Appendix 10, Page 50.

STATUTES INVOLVED

Florida Statutes 212.04 and 212.02 (16 and 17) are here

involved and read as shown in Appendix Exhibit 11, Page

57.

Forida Statutes 213.01 requires ‘‘fairness’’ and

impartiality in taxation.

Florida Statutes 212.15 (4) is invalid if and when

applied to require a citizen residing in Key West or

Pensacola to travel to Tallahassee to get a hearing to

determine lis constitutional rights. The court erred in

transferring the case from Okaloosa to Leon County,

Appendix Exhibit 7, Page 33.

Fiorida Department of Revenue’s Rule 12A-1.05 (4)

(n)), Appendix Exhibit 12, 12-a, and 12-b, Page 58, 59 and

60, quoted in Bulletin No. DOR 73-4, dated June 19, 1973,

attempting to make ‘‘fishing’’ taxable when such word is

not mentioned in the statute, is invalid.

Rules 1.220 and 1.230, Florida Rules of Civil Procedure

authorize Class actions and the joinder of additional

parties. Devlin v. Dickinson 305 So. (2) 848. The Court

Order of March 13, 1973, dismissing all parties but Kelly

is in error.

STATEMENT

On reviewing the 197 page record as prepared by the

Clerk of the Circuit Court in the case at bar, the

depositions of eight witnesses with some fifty exhibits

they identified, and considering the answers to

interrogatories and undeniable official records, we

attempt to summarize some of the facts as follows:

10

1. In 1949 the Florida Legislature enacted Chapter 212

of the Florida Statutes, commonly known as the sales tax.

According to the undisputed evidence, plaintiffs are

engaged in the ‘‘fishing’’ business and in no other

business. They offer no entertainment for which any

‘‘admission’’ can be charged. They never heard of the

word ‘‘admission’’ as applied to fishing until the agents

coined the word, called fishing an admission so as te bring

the business within the meaning of the statute.

Petitioners were not qualified to ‘‘collect’’ any tax until

1973. Deposition of L.B. Kelly. If they had collected the

tax, contrary to Kelly 1, Appendix Exhibit 5, Page 11,

prior to Pelican, Appendix Exhibit 8-a, Page 44, they

would have been collecting funds illegally and money

which did not belong to the State, according to Davis,

Appendix Exhibit 10, Page 50.

Fishing as a taxable item is not contained in the statute.

Obviously the legislature did not intend to apply the tax to

fishing. In 1949 fishing as we know it today did not exist.

If the legislature had intended to include fishing as a

taxable activity it would have been a simple matter for the

word to have been included along with such words as

‘‘theaters,’’ ‘‘shows’’ and similar words on which the tax

was imposed. For some twelve years and not until 1963,

Department of Revenue, referred to as DOR, did not

attempt to apply the tax to fishing. No effort was made to

require plaintiffs to pay the $1.00 statutory fee and qualify

as agents of DOR to collect the tax until 1973 and as a

result of the Pelican decision, Appendix Exhibit 12, 12-1

and 12-b, Pages 58, 59 and 60. The Florida Legislature

meets every other year. From 1949 until 1963 it was in

session on seven different occasions and if the legislature

had intended to apply the tax to fishing it would certainly

have amended the law to include the word fishing as

being taxable. It is reasonable to assume that if any such

move had been attempted it would have been bitterly

11

opposed not only by the fishing industry but by business

in general.

The legislature failing to amend the law to make fishing

taxable, DOR promulgated a regulation specifically

naming ‘‘fishing’’ as a taxable item, Appendix Exhibit 12,

12-a, and 12-b, Pages 58, 59 and 60. This regulation, if

valid, would have the force and effect of a statute and

many persons would comply and collect the tax without

questicn. Not so with some of the members of the Florida

Boatmens Association

In 1965, DOR seized a Kelly boat for failure to pay the

tax, Appendix Exhibit 3, 4, 5, and 6, Pages 7, 10, 11, and

13. The seizure was held to be illegal, Appendix Exhibit 3,

Page 7. A restraining order was issued and remains in

effect, we think, until this court decides this case,

Appendix Exhibit 3, Page 7. Only in some areas and

temporarily was the restraining order observed. Because

of the venue question and refusal of the trial court to

permit all boat owners to join in one suit, it became

necessary to file nine suits. Seven of these suits are

mentioned in a suit entitled Virgil Anderson, et als. v.

DOR No. 76-1933 in Circuit Court, Okaloosa County,

Florida, filed October 27, 1976, Appendix Exhibit 14,

(not printed). Not less than twelve restraining orders have

been ente ©. by seven different Circuit (trial) judges

adverse te =. contentions of DOR, Appendix 14 (not

printed). ii ..ese re. sxining orders had been observed

doubtless this case would not have been brought before

this court. The action of seven trial court judges entering

restraining orders against DOR preventing the collection

of this tax is adequate grounds to create a ‘‘doubt’’ about

the meaning or intent of the legislature in enacting

Chapter 212 in so far as fishing is concerned. If there is

such a doubt it should be resolved in favor of plaintiff boat

owners and the tax denied as in Kelly 210 So. (2) 266.

12

DOR v. Brookwood Associates 324 So. (2)

184,187, citing authorities.

On threat of being found guilty of contempt of court,

Appendix Exhibit 15 and 16, Page 63 and 65, DOR has

cancelled some liens and frozen bank accounts, Appendix

Exhibit 14-a, Page 62.

In an effort to show the reasoning behind the

restraining orders, we submitted a 16 page brief dated

July 11, 1974, Appendix 17, Page 67, which by this

reference we incorporate herein. Also, at the request of

the trial court, we submitted an eight page brief dated

2/19/75 concerning the retrospective aspect of this tax

case citing the carefully considered case of Oklahoma

County v. Queen City Lodge 156 P. (2) 340,354. R. 150. A

copy of this brief appears in the Record at Page 150 and

also at the end of Appendix to Petitioners’ Brief in No.

48,865, the case at bar. The facts appear in somewhat

greater detail in our briefs filed in Okaloosa County No.

72-2479, Leon County No. 73-1494, District Court of

Appeal No. Y-315, 324 So. (2) 651 and Supreme Court No

48,865. All these four number refer to the same case.

REASONS FOR GRANTING THIS WRIT

The granting of this petition for certiorari and the

reversal of the case at bar, Florida Boatsmen Association,

Kelly Boat Service, et als., cited as Department of

Revenue v. Kelly Boat Service, 324 So. (2) 651 will

accomplish the following results:

1. It will comply with the mandate of Florida Statute

213.01 reading:

‘It is hereby declared to be legislative intent that the

revenue laws of the state be administered in a fair,

efficent and impartial manner.’’ Wests Fla. Statutes

An.Vol. 10B Sec. 213.01.

SS ST's

ew =)

13

2. It will eliminate obvious arbitrary discrimination in

taxation. Under Davis v. Askew 343 So. (2) 1329,

Appendix Exhibit 10, Page 50. Davis is not required to

pay the retrospective tax which is sound law based on

equitable principles. Oklahoma, etc. v. Queen City, etc.

156 P. (2) 340. IBM v. U.S. 343 F. (2) 914 holds that one

person may not be taxed when its competitor is not

required to pay the tax.

3. It will reconcile conflicting decisions by the District

Court of Appeal. In Straughn v. Kelly 210 So. (2) 266 the

tax is held illegal, Appendix Exhibit 5, Page 11. In

Department of Revenue v. Kelly 324 So. (2) 651,

Appendix Exhibit 9, Page 48, not only is the tax sustained

but also it is irnposed retrospectively resulting in financial

disaster. In Davis v. Askew, supra, the retrospective tax

was denied. In Department of Revenue v. Brookwood

Associates 324 So. (2) 184,187 the court followed the

century old law that tax laws are strictly construed, citing

31 Fla. Jurisprudence, Taxation, Section 61 citing cases.

To the same effect is 82 CJS Section 396 (b) Statutes. The

rule appears to have been followed in about forty states

and in the Federal courts.

4. It will restore respect for the court decisions. The

trial court in 15,117 held the tax was in violation of the

Constitution in that it was an undue burden on interstate

commerce. The Final decree bears date of June 24, 1966.

It was affirmed April 25, 1968, Appendix Exhibit 3 and 5,

Page 7 and 11. Rehearing denied June 4, 1968. The

decision was considered to be the ‘‘law of the case’’, at

least until after the decision in Pelican, Apperrdix Exhibit

Ex. 8-1, Page 44. In Davis v. Askew, Appendix Exhibit 10,

Page 50, it is said that a competitor (meaning Kelly) was

‘“protected’’. This is not correct according to Kelly II (as

designated in Davis v. Askew) Appendix Exhibit 9, Page

48.

14

5. It will tend to re-establish the soundness of our three

divisions of government, the legislative, executive and

judicial. In 15,117 the trial court held that the legislature,

failing to mention ‘‘fishing’’ as taxable, did not intend to

impose the tax, Appendix 3, Page 7. The decree was

affirmed on appeal, Appendix Exhibit 5, Page 11. Kelly,

et als. relied on it. It was not until after the Pelican

decision that the boat owners were required to pay the

$1.00 statutory fee to qualify them to act as agents for

Florida and to collect the tax, Appendix Exhibit 12, 12-a

and 12-b, Pages 58, 59 and 60.

6. It will reassert the fundamental principle that laws

are enacted by the legislature, not by administrative

agencies. Fla. Statute 212 was enacted in 1949. After

failing for more than a dozen years to apply the tax to

‘‘fishing’’, well knowing that the statute did not mention

fishing as a taxable item, DOR adopted a regulation in

1963 known as 12 A-1.05 (4) (a), Appendix Exhibit 12,

12-a, and 12-b, Pages 59, 60 and 61, in which ‘‘fishing’”’

was specifically mentioned as being taxable. With this

regulation the tax agents were able to collect the tax from

some persons. The regulation expanded the statute to

make ‘‘fishing’’ taxable when the statute did not so

provide. This is illegal. Masonite v. Fly 194 F. (2) 257.

7. It will give effect to Rules 1.220 and 1.230, Florida

Rules of Civil Procedure. Wests Fla. Stat. An. Vol. 31.

The order of the court dated March 12, 1974, dismissed all

parties plaintiff except Kelly Boat Service. R. 170, 171

and denied the Class action. This is in error. Florida Rules

of Civil Procedure, Rule 1.220 reads:

‘‘When the question is one of common or general

interest to many persons constituting a class so

numerous as to make it impracticable to bring them all

before the court, one or more may sue or defend for the

whole.’’

15

State ex rel Devlin v. Dickinson 305 So. (2) 848,850

Rule 1.210 authorizes the joinder of additional parties.

Several parties by their despositions, affidavits and

motions requested that they be permitted to join as

parties plaintiff but were denied the right. Nine different

suits were filed.

The 198 page record as certified by the Clerk has been

much abbreviated in the Appendix following this petition.

Material records which have not been included in the

Appendix to this Petition appear in the Record at Page 22,

48, 53, 66, 80, 84, 97, 108, 116, 118, 120, 122, 126, 132,

133, 137, 139, 150, 160, 164, DEPOSITIONS in 3 volumes

under separate cover, 166, 167, 170, 183, 192, 196, and

198.

As of October 25, 1972, the trial court was requested to

make Findings of Fact 1 to 51 (R.22). An Order was

entered on September 24, 1973, Appendix Exhibit 7, Page

33, finding the facts to be as alleged in the complaint.

Appendix Exhibit 6, Page 13. R. 79. Findings 52 to 59 was

requested, R. 120, as of June 24, 1974. On May 22, 1974,

R. 97, DOR was requested to admit 73 facts. The answers

appear in the record at pages 108, et seq. On April 15,

1974, depostitions were taken from eight witnesses. This

testimony is contained in three volumes and mentioned in

the Index as prepared by the Clerk (after P. 164). Based

or. this undisputed evidence, affidavits and officia!

records, on July 11, 1974, there was presented to the

court plaintiffs’ Motion for Findings of Fact and

Conclusions of Law, 16 pages, requesting the court to

make Findings 1 to 20, Appendix Exhibit 17, Page 67.

These Findings of Fact were not made. No excuse was

offered for failure to make the Findings. As to the

retrospective aspect of the case, the judgment of the trial

court was favorable to plaintiffs, Appendix Exhibit 8,

Page 34. This judgment, on appeal was reversed,

16

Appendix Exhibit 9, Page 48. A Motion for Rehearing of

the Order of December 3, 1974, was timely filed

attributing to the trial court eighteen errors. R. 137. This

Motion was supported by an 8-page brief. R. 139.

8. The granting of this Petition for Certiorari will

sustain thirteen orders entered by seven Circuit Judges

entered during this twelve yeras of litigation which orders

are adverse to the contentions of respondent.

9. Other and additional reasons for granting the Writ

are indicated in Petitioners’ Motion for Rehearing dated

December 3, 1974, Appendix Exhibit 20, Page 85.

CONCLUSION

For the foregoing reasons this petition for a writ of

certiorari should be granted.

Respectfully submitted,

David W. Palmer,

David W. Palmer II,

Counsel for Petitioners,

P.O. Box 95

Crestview, Fla. 32536

CERTIFICATE OF SERVICE

I hereby certify that a copy hereof has been mailed to

Honorable Robert L. Shevin, Attorney General, The

Capitol, Tallahassee, Fla., attention E. Wilson Crump,

II, Assistant, this 23 day of June 1977.

David W. Palmer

APPENDICES

Cdl

APPENDIX A

Supreme Court of the United States |

No. A-848

FLORIDA BOATSMEN ASSOCIATION, ET AL., :

Petitioners, ;

v.

DEPARTMENT OF REVENUE, ET AL.

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

Upon Consideration of the application of counsel for

petitioner(s),

It Is Ordered that the time for filing a petition for writ of

certiorari in the above-entitled cause be, and the same is

hereby, extended to and including June 9, 1977.

/s/ Lewis F. Powell

Associate Justice of the Supreme

Court of the United States

Dated this 15th

day of April, 1977.

APPENDIX B

IN THE SUPREME COURT OF FLORIDA

MONDAY, JANUARY 10, 1977

FLORIDA BOATSMEN ASSOCIATION, ET AL..,

Petitioners,

vs.

DEPARTMENT OF REVENUE OF THE

STATE OF FLORIDA, ET AL.

Respondents.

CASE NO. 48,865

On consideration of the Motion for Rehearing, etc.,

filed by petitioners, it is ordered that said motion is

denied.

OVERTON, C.J., ENGLAND, SUNDBERG, AND

HATCHETT, JJ., CONCUR ADKINS, J., DISSENTS

APPENDIX C

DEPARTMENT OF REVENUE

V.

KELLY BOAT SERVICE, INC.

CITE as, Fla. App., 324 So. 2d 651

DEPARTMENT OF REVENUE et al.,

Appellants,

v.

KELLY BOAT SERVICE, INC., et al.,

Appellees

No. Y-315

District Court of Appeal of Florida,

First District.

; Nov. 26, 1975.

Rehearing Denied Jan. 28, 1976.

Department of Revenue appealed from summary final

judgment entered by the Circuit Court, Leon County, Hal.

S. McClamma, J., declaring a commercial boat service

liable for payment of the statutory admissions tax on

admission fares charged by the boat service at the dock

but foreclosing the Department from making assessment

against the taxpayer for a period prior to August 1973.

The District Court of Appeal, Smith, J., held that the

commercial boat service was liable to assessment for the

admissions tax; but that the Department of Revenue

would not be foreclosed from asserting that the boat

service should satisfy its full tax liability incurred within

the period prior to August 1973.

Affirmed in part, reversed in part.

@ ie ms -

C-2

1.Theaters and Shows

Commercial.fishing boat service, whose boats took on

passengers in Florida for fishing in Gulf of Mexico,

beyond territorial limits of Florida, was subject to

statutory admissions tax to be imposed on admission fares

charged by boat service at dock. West’s F.S.A. §§ 86.01 et

seq., 212.04.

2. Theaters and Shows

Department of Revenue would not be foreclosed from

making -assessment of admissions tax imposed upon

commercial fishing boat service for taxes due during

period between August 1970 and August 1973 even

though Department did not demand production of

taxpayer’s records for audit purposes until August, 1973.

West’s F.S.A. 8§ 86.01 et seq., 212.04.

Robert L. Shevin, Atty. Gen., and E. Wilson Cump, III,

Asst. Atty. Gen., for appellants. |

David W. Palmer and David W. Palmer, II, Crestview,

for appellees.

SMITH, Judge.

The Department of Revenue appeals from a summary

final judgment of the circuit court declaring, as authorized

by Chapter 86, F.S. 1973, the liability of appellee Kelly

Boat Service, Inc., for payment of the admissions tax

imposed by § 212.04, F.S. 1973. The court held that Kelly,

whose boats take on passengers at Destin for fishing in

the Gulf of Mexico beyond the territorial limits of Florida,

is taxable at the statutory rate on the admission fare

charged at the dock, but that the State is foreclosed from

assessing Kelly for taxes that should have been paid

C-3

between August 1970 and the first day of August, 1973,

the month in which the Department demanded the

production of Kelly’s record for audit. Sec. 212.14(6), F.S.

1973. By cross-appeal, Kelly urges that its activities are

not subject to the tax. Straughn v. Kelly Boat Service,

Inc., 210 So.2d 266 (Fla.App.1st, 1968). Kelly and other

cross-appellants complain also of the trial court’s refusal

to grant their complaint class action status.

(1,2) The trial court was correct in its reading of our

decision in Department of Revenue v. Pelican Ship Corp.,

257 So. 2d 56 (Fla.App.1st, 1972), cert. den 262 So.2d 682

(Fla.1972), cert. dism. 287 So.2d 93 (Fla.1974), and in

holding that Kelly’s commercial activities, as evidenced

by the record, render it liable to assessment for the

admissions tax. The court was incorrect, however, in

foreclosing the Department of Revenue from making the

assessment for the full three-year period authorized by §

212.14(6), F.S.1973. The State is not foreclosed, by reason

of our 1968 decision in Straughn v. Kelly Boat Service,

Inc., or otherwise, to assert that on the facts shown by this

record Kelly should satisfy its full tax liability incurred

within three years prior to August 1, 1973. North

American Co. v. Green, 120 So.2d 603 (Fla.1960); Jackson

Grain Co. v. Lee, 139 Fla. 93, 190 So. 464 (1939), 150 Fla.

232, 7 So.2d 143 (1942).

We have also considered but cannot sustain appellees’

other points on the cross-appeal.

Affirmed in part, reversed in part.

BOYER, C.J., and SACK, MARTIN F., Associate

Judge, concur.

ee

This petition seeks a review of the order by the

Supreme Court of Florida as shown below. As the

Supreme Court did not hand down any opinion, more than

to deny the petition for certiorari (with one dissent), the

decision to be reviewed is by the District Court of Appeal

in Case No. Y-315 reported at 324 So.(2) 651. The later

decision in Davis v. Askew 343 So.(2) 1329 reaches a

different conclusion.

APPENDIX D

Supreme Court of Florida

Thursday, November 4, 1976

FLORIDA BOATSMEN ASSOCIATION, et al.,

Petitioners,

vs.

DEPARTMENT OF REVENUE OF THE

STATE OF FLORIDA, et al.,

Respondents.

CASE NO. 48,865

DISTRICT COURT OF APPEAL,

FIRST DISTRICT

Y-315

This cause having heretofore been submitted to the

Court on Petition for Writ of Certiorari, jurisdictional

briefs and portions of the record deemed necessary to

reflect jurisdiction under Florida Appellate Rule 4.5 c (6),

and it appearing to the Court that it is without

jurisdiction, it is ordered that the Petition for Writ of

Certiorari be and the same is hereby denied.

OVERTON, C.J., ENGLAND, SUNDBERG and

HATTCHETT, JJ., concur

ADKINS, J., dissents

EXPLANATION

Forty copies of this Petition for Writ of Certiorari

including Appendix of 88 pages were timely deposited

with the Clerk. On June 9, 1977, the Clerk returned the

Petition and advised that the Appendix had not been

printed according to the requirements of Rule 39. A

motion was promptly filed requesting an extension of

thirty days time in which to correct the returned petition.

By telephone on June 20, 1977, the Clerk’s office advised

.that the 30 days extension of time could not be granted. It

was suggested, and agreed to, that the 21 Exhibits in the

Appendix be deleted except four Exhibits which follow at

the end of the petition. This petition is being submitted

according to agreement. For ready reference three copies

of the original petition containing the 88 page Appendix

are being sent to the Clerk.