STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DIVISION OF ) BEVERAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 77-003

) CHARTER DISTRIBUTING COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, on January 20, 1977, at 10:00 a.m. at 1934 Beachway Road, Jacksonville, Florida.

APPEARANCES

For Petitioner: Charles T. Collette, Esquire

Division of Beverage

Department of Business Regulation The Johns Building

725 Bronough Street

Tallahassee, Florida 32304

For Respondent: Stephen D. Busey, Esquire

500 Barnett Bank Building Jacksonville, Florida 32202

ISSUE

Whether or not on or about the 2nd day of April, 1976, the Respondent, Charter Distributing Company, licensed under the Cigarette Laws, did unlawfully attempt to evade or defeat the state tax by attempting to gain a cigarette tax rebate on unstamped cigarettes, contrary to s. 210.18(1), F.S.

FINDINGS OF FACT

1. At all times material to the Notice to Show Cause, the Respondent, Charter Distributing Company was licensed under License No. 26-106, CWD, with the State of Florida, Division of Beverage.

   
   

2. On April 2, 1976, Mr. Jesse Bob Cooper, an Excise Auditor II, with the State of Florida, Division of Beverage went to the licensed premises at 975 Broad Street, Jacksonville, Florida to cancel certain cigarette imprints to enable the licensee to get a refund of cigarette taxes paid. Those cigarettes upon which the imprints were to be cancelled were cigarettes which were taken out of commercial circulation because they were stale. These cigarettes were part of a quantity of cigarettes which were being returned by manufacturers

   representatives of the various cigarette companies to Charter Distributing Company. The arrangement was to have the cigarette company representative bring the cigarettes into the warehouse area and stack those cigarettes in a "dump area" and receive credit for them. The amounts being brought in by the manufacturers representatives were from 30 to 250 cartons on each occasion. The president of the Respondent, William Moore, would then ask the manufacturers representative if the cigarettes had the appropriate stamps for cancellation.

   When he was prepared, he would contact the Petitioner's representative to come over and cancel the cigarettes for refund.

   
   

3. On April 2, 1976, when Mr. Cooper arrived to cancel the Cigarettes, the cigarettes were placed on a table and examined for proper stamps. On that date, eleven (11) packs of cigarettes were discovered which had inappropriate stamps. Nine of those packs of cigarettes were meter stamped, that is, had meter imprints that were inappropriate. One pack of the eleven packs had the heat or Addco stamp and the final pack had a hand stamp. Although the latter two packs of cigarettes had the appropriate form of stamp, the cellophane wrapper around the pack had been taped there and the stamps were not correct for those two packs. The process was being conducted by having Mr. Moore cancel the packs of cigarettes that were being examined, while Mr. Cooper witnessed. There was no effort at concealing the inappropriate packages of cigarettes made on the part of Mr. Moore. The eleven packs of cigarettes had been brought in by some undisclosed manufacturer's representative and had not been discovered until the point of checking for tax refunds, which was the activity on April 2, 1976. The Respondent, after discovery of the inappropriate stamps had been made, did not make any further request for tax refund and has not received such refund. Finally, there was no showing that the Respondent had any knowledge of the impropriety of the stamps prior to the discovery on April 2, 1976 when these eleven packs and other cigarettes were being cancelled.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction in this cause.

   
   

5. It is concluded as a matter of law that the Petitioner has failed to show the violation as alleged on April 2, 1976 which was a contention that the Respondent, Charter Distributor Company, licensed under the Cigarette Laws, unlawfully attempted to evade or defeat the state tax imposed by attempting to gain a cigarette tax rebate on unstamped cigarettes, contrary to s. 210.18(1),

F.S. To make such showing, the Petitioner would have had to show that the Respondent willfully attempted in some manner to evade or defeat the tax imposed by Chapter 210, F.S. or the payment thereof, and this showing was not made.

RECOMMENDATION

It is recommended that the Respondent, Charter Distributing Company, License No. 26-106, CWB, be released from further responsibility to answer to the Notice to Show Cause herein.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Charles T. Collette, Esquire Division of Beverage

Department of Business Regulation The Johns Building

725 Bronough Street

Tallahassee, Florida 32304

Stephen D. Busey, Esquire

500 Barnett Bank Building Jacksonville, Florida 32202

Docket for Case No: 77-000003

Orders for Case No: 77-000003