MIAMI MIRROR TRUE REFLECTIONS

Bay Harbor Professional Center (L) Corporate Owners Mailing and Principal Address (R)

You have heard the laws, fellow citizens, and I am sure that you approve of them. But whether these laws are to be of use or not, rests with you. For if you punish the wrong-doers, your laws will be good and valid; but if you let them go, the laws will still be good, indeed, but valid no longer. Aeschines, Speech Against Timarchus

On DOING BUSINESS NOWHERE

First Draft: December 2, 2013 By David Arthur Walters MIAMI MIRROR The Miami-Dade County Commission on Ethics and Public Trust (COE) closed a case in July 2011 of some interest to all Florida businesses inasmuch as it appertains to the enforcement of the requirements of a county and municipal localities therein that all profit-seeking businesses must obtain what is called a local business tax receipt from both the county and respective municipalities before they conduct business. To ensure that the places of business are safely placed and conform to land use codes, a certificate of use issued pursuant to a certificate of
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occupancy approved by the relevant government agencies is normally a prerequisite for obtaining a local business tax receipt. According to Report of Investigation #K11-088 made by COE investigator Sylvia Batista, the COE received an email alleging that a company by the name of Bay Harbor Professional Center, Inc. had occupied a place where it was doing business, and was not paying the local business taxes. The Investigator discovered that the business owned a professional center located in Bay Harbor Island and did not have an occupational license at the centers address there. However, the municipalitys clerk told her that the corporation does not have to have a license unless it occupies space therein. Apparently the Investigator did not ask if the corporate owner of the professional center had a local business tax receipt. The Investigator apparently took it for granted that an owner of property who rents out that property is not doing business there unless the owner occupies a definite office within the space at that property. That finding is logically absurd inasmuch as the corporate property owner is conducting a rental business at that location and that location is entirely occupied by the owners property. If a corporation had five office buildings in five different cities, it would be doing business in all five cities whether or not it kept offices in those buildings. The Investigator noted that the corporations filing with Floridas Secretary of State gave its corporate address at an address in Surfside occupied by an unrelated real estate company where the president of the corporation is the broker and the vice president of the corporation works as realtor. The vice president said the corporation neither occupies space in Bay Harbor Island nor at the brokers office in Surfside, where it only receives mail. i The Investigator did not mention that the corporate address given on the state filing was not only the mailing address but was also the principal address. The Florida statutes require both addresses to be provided under felony penalties of perjury on the filing of the articles of corporation. Thereafter, both addresses, the Current Mailing Address and the Current Principal Place of Business, must be provided on annual reports to the state. Most states require corporations to state their principal place of business. That is the location of the head office of a business where the books and records are kept and management works. The U.S. Supreme Court famously concluded, in Hertz Corp. v Friend, 130 S. Ct. 1181 (2010), that the phrase principal place of business refers to the place where the corporation's high level officers direct, control, and coordinate the corporation's activities. Lower federal courts have often metaphorically called that place the corporation's nerve center." People who conduct a business at home should be quite familiar with the principal place of business phrase. IRS Publication 587 states that a business may have several addresses, but to
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take a deduction for space used at home, that place must be its principal place of doing business, meaning that, You use it exclusively and regularly for administrative or management activities of your trade or business. You have no other fixed location where you conduct substantial administrative or management activities of your trade or business. The Investigator apparently did not contact the clerk at Surfside and ask if the corporation had a local business tax receipt enabling it to inhabit another occupants business as its principal place of business. That municipality, like other municipalities in the county, imposes a local business tax for the privilege of doing business, pursuant to Code Sec. 70-26: Local business tax receipt required. It shall be unlawful for any person listed below to conduct or engage in any business, profession or occupation mentioned in this article within the town without first procuring a local business tax receipt and paying to the town the local business tax imposed and levied by this article: (1) Any person who maintains a permanent business location or branch office within the town, for the privilege of engaging in or managing any business within its jurisdiction. A property owner may not permit a company to operate a business on a property in Surfside without County and Surfside business tax receipts. A copy of the Miami Dade County Local Business Tax Receipt and a copy of corporate documents have to be provided by a corporation when applying for business tax receipt in Surfside, pursuant to Chapter 205 (Local Business Taxes) of the Florida Statutes. The Investigator checked the county appraisers records to discover that real estate taxes were paid, but she apparently did not check the countys records for a business tax receipt as required under county code. iiOne of the following sections of the code would apply to this case: Sec. 8A-207.1, Administrative office, operation center: Every person, firm or corporation which maintains a business location in Miami-Dade County for the purpose of administration of his or its own business or investments and/or general business operations shall pay a local business tax as provided for in the schedule of taxes, Section 8A-223.1. The local business tax required by this section shall be in addition to any license(s) required for the actual business activities. Or Sec. 8A-207, Unclassified businesses not otherwise provided for: Every person engaged in the operation of any business profession or occupation not specifically referenced under any other provision of this article shall pay a local business tax as an unclassified business as provided for in the schedule of taxes, Section 8A-223.1 for each place of business. However that may be, Investigator Batista closed the case, as if the business she was investigating was doing business in no place at all. Yet commonsense feels that business acts
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upon something sensible, so if business is done, it is done at perceptible places by means of its instruments. If we are to believe this COE investigator, the business of Bay Harbor Professional Center, Inc., is accomplished at no place at all, nor is it directed from anyplace on this earth of ours, leaving us to believe that this corporation, whether it be an artificial creation of the state or a real organic fellowship of human beings independent of the law, is transcendental, and from parts unknown, perhaps by virtue of divine Occassionalism, realizes its business on Earth by magical means; that is, without itself actually being in the world, if it has a self, or without occupation of measurable places in which it might direct its business and make a profit. The same might be reasonably said of a human business person if we had the time and space here to fascinate ourselves scholastically with philosophical discourse. Now the COE has no jurisdiction over whether or not businesses obtain and certificates of use and local business tax receipts. It does have jurisdiction over violations of the countys conflict of interest and ethics codes, and in this case a directing officer and likely controlling shareholder of the private corporation happened to be a high public official who had evicted the person bringing the matter to the COEs attention from the office building. Therefore that directing officer presumably manages the business that is conducted nowhere or is managed from no place. Normally, the persons involved and their relationship no matter its nature would be irrelevant as to whether or not the business was authorized to do business, so it is unnecessary to dwell on personal characteristics. Suffice it to say that the evicted professional found reason to believe that the landlord was exploiting the power of his official position to avoid complying with county and local codes in respect to taxes and usage. The ethics complaint should have been dismissed because the complainant brought forward no probative evidence that the public official, who happens to be a highly respected city attorney with thirty years of government service, had knowingly abused his position to gain preference or exemption from the ordinances and thus violate the code of ethics. Attorneys and public officials are supposed to know everything about the laws, but they do not; otherwise they would have nothing to argue about. Certified public accountants often know far more about the complex of tax laws and related ordinances than they do. Hundreds if not thousands of businesses in the county may be doing businesses without the necessary local business tax receipt and required licenses. The penalties, attorney fees, and court costs for doing business without a local business tax receipt would be onerous for small mom-and-pop businesses operating on the Internet and/or out of their homes, garages, cars, and back pockets.

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What appears to be the selective enforcement of the thousands of laws everyone is supposed to be aware of as legislative bodies pass more and more of them every week may very well be random enforcement due to a lack of resources, inadequate management techniques, ignorance of the law on the part of officials, or simply negligence. Resources may be augmented by whistleblowers, regardless of their motives. This is one of those Dont ask, dont tell, things. A vindictive person might get mad and tell on a violator with no other incentive than enjoying some revenge. It used to be said during the Athenian democracy, when there was no regular public prosecutor and when individual citizens could sue on behalf of the public, that private animosity did public good. Yet the public remained suspicious of how much good was done by people who claimed their suits were entirely altruistic. Now here is a way to make a lot of people mad: Attempt to match the principal address on corporate articles or the principal place of business on annual repo rts filed with the Secretary of State to county and local records, in order to ascertain which ones do not have a local business tax receipt. Where there is no such match, follow up with notification as to the requirement and the penalties that may be imposed for noncompliance. Require proof that the business is inactive if that is the excuse. Otherwise require that the necessary business tax receipt be obtained and presented within 30 days from receipt of notice. Dissolve all corporations that do not respond. Use a similar method for enforcing the law in respect to partnerships and proprietorships. Now a disclaimer is in order here although one of the fundamental rules of rhetoric is that a speaker should never speak against himself. The author of this article, which does not constitute legal advice, is not a lawyer, and has been pronounced stupid by a proper lady; therefore, anyone in need of advice on the subject matter should consult with governmental authorities, and with a tax attorney if they disagree or have to ask each other what the law is. Since the author admits to his stupidity, and since he would be deemed wise by proper ladies, this article may be updated to include any such advice even if it is casuistry and pettifoggery. ##
i

31 January 2014. Giselle Sanchez, Business Tax Receipt and Professional License Administrator, Town of Surfside, when asked if Bay Harbor Professional Center had a BTR, associated the question with the Harding Realty address the company uses right away, stating that the matter had come to the attention of Surfsides mayor, who had inquired about it because of published articles on the matter. She said that, if the corporation has its principal place of business at that location as stated in state filings, and the business is separate from Harding Realty, then someone needs to apply for a local BTR for Bay Harbor Professional Center. I explained that my main interest was in the competence of the county Ethics Commission and not in the BTR issue per se. ii 31 January 2014. Miami-Dade County confirmed that Bay Harbor Professional Center Inc. holds a current county business tax receipt, No. 4918554, expiring 14 September 2014, for an office rental space of 20,000 sq. ft.

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