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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 434 U.S. 836

## Text

Sup: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.

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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:

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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

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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.

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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 =)

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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.

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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.’’

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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,

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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.

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