STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS ) REGULATION, DIVISION OF ALCOHOLIC ) BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 78-010

) PANACEA FISHING LODGE, INC., t/a ) GULF BEACH CLUB, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Marianna, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on January 26, 1978. The parties were represented by counsel:

APPEARANCES

For Petitioner: Mr. Francis Bayley, Esquire

The Johns Building

725 South Bronough Street Tallahassee, Florida 32304

For Respondent: Mr. W. R. Phillips, Esquire

Post Office Box 594 Carrabelle, Florida 32322

By notice to show cause, petitioner alleged that respondent "failed to maintain necessary china, tableware, and seating (table and chairs) equipment for preparing and serving full course meals, contrary to Administrative Rule 7A- 3.15" on or about July 22, 1977; and that respondent's third vice president, David Maloney, "did file and issue a false report and check in payment of a cigarette 'Floor tax'" at or about the same time.

FINDINGS OF FACT

1. Respondent is the holder of a beverage license grand-fathered in by Section 561.20(2)(b), Florida Statutes (1975), which has as a condition that respondent maintain facilities for serving full course meals to 200 patrons. After being closed for some years, respondent reopened for business on May 13, 1977. David Maloney was hired as cook and manager and became an officer of respondent. On June 3, 1977, Mr. Grady Leon Broxton, Jr., a beverage officer in petitioner's employ, inspected respondent's premises and inventoried chairs, tables, and tableware. He found 204 chairs and 51 tables, 176 plates, 125 forks, 80 knives, 250 bread dishes, 250 salad bowls, 86 cups and less than 200 spoons. Accordingly, Officer Broxton issued a formal notice of these deficiencies, directing respondent to bring up to 200 the numbers of plates,

   spoons, forks, knives and cups. When Officer Broxton returned on June 9, 1977, he found that respondent had cured the deficiencies and was in full compliance with the conditions of its license.

   
   

2. By enacting Florida Laws Chapter 77-409, the 1977 Legislature increased the excise tax on packages containing 20 cigarettes from 17 to 21 cents per package, effective July 1, 1977, Florida Laws, Chapter 77-409, ss. 1 and 5. On July 7, 1977, Officer Broxton entered respondent's premises and advised David Maloney that he should multiply by $.04 the number of cigarette packages respondent had for sale on July 1, 1977, and send a check or money order in that amount to petitioner. Officer Broxton noticed approximately five cartons of cigarettes on the premises at that time. On July 10, 1977, David Maloney wrote petitioner that, as of July 1, 1977, "only two packs of cigarettes were on hand," petitioner's exhibit No. 2, and enclosed a check in the amount of eight cents ($.08). In the cover letter, Mr. Maloney addressed petitioner's employees as "you Assholes."

   
   

3. Shortly after mailing the letter and check, Mr. Maloney quit respondent's employ without notice. When respondent's president, William B. Miller, III, discovered that Mr. Maloney had left, he also noticed that cigarettes, liquor and silverware were missing.

   
   

4. On July 21, 1977, petitioner's Lieutenant George Fader entered respondent's premises and noticed customers drinking alcoholic beverages at the bar. He introduced himself to Mrs. Miller, who was behind the bar. She said the eight cents ($.08) must have been a mistake and that Mr. Maloney had gone but that she did not know where. Lt. Fader noticed that there was a pool table in the restaurant. At the time of Lt. Fader's visit, Mr. Miller was at respondent's bank putting in stop payment orders for fear Mr. Maloney might have drawn checks on respondent's account for unauthorized purposes. Before leaving, Lt. Fader made a hurried count of chairs, exclusive of folding chairs, and concluded that there were some 185 on the premises.

   
   

5. The following day, Lt. Fader and Officer Broxton returned to respondent's premises and advised Mr. Miller that respondent could be charged criminally with tax fraud. When petitioner's agents told Mr. Miller that they estimated that there were 60 packages of cigarettes on the premises on July 1, 1977, Mr. Miller offered to write a check for two dollars and forty cents ($2.40). Mr. Miller wrote petitioner a check, but, at Lt. Fader's suggestion, the amount was reduced by eight cents ($.08) to two dollars and thirty-two cents ($2.32). Officer Broxton counted 44 tables and 140 chairs, excluding folding chairs, even though he had included these on his earlier visit. He did not count folding chairs on July 22, 1977, because Lt. Fader directed him not to. Officer Broxton found 121 teaspoons, 112 forks, 154 knives and 118 cups on July 22, 1977. Lt. Fader told Mr. Miller that there need not be 200 cups, if glasses and cups together numbered 200 and if there were 200 water glasses. There was no evidence as to the number of glasses on respondent's premises on July 22, 1977.

   
   

   CONCLUSIONS OF LAW

   
   

6. Pursuant to Florida Laws, Chapter 77-409, respondent was liable for an additional tour cents ($.04) tax for each package of cigarettes in its inventory as of July 1, 1977. The weight of the evidence, taken as a whole, established that respondent had more than two, but less than sixty, cigarette packs on its premises on July 1, 1977. Although Mr. Maloney's representation to petitioner, in his letter of July 10, 1977, that there were only two cigarette packs on

   respondent's premises on July 1, 1977, was false, respondent did not authorize Mr. Maloney to write the letter of July 1, 1977. Rather than acting as respondent's agent, Mr. Maloney acted on his own, possibly with the intention of provoking adverse consequences for respondent. The evidence did not show respondent to be guilty of tax evasion within the meaning of Section 210.18, Florida Statutes (1977)

   
   

7. As a condition of its beverage license, a restaurant like respondent's must "be equipped with the necessary china and tableware and seating to handle the minimum seating capacity required by general law or special act." Rule 7A- 3.15(e), F.A.C. The evidence established that respondent violated Rule 7A-3.15, F.A.C., by failing to have on hand silverware sufficient to serve 200 persons, on July 22, 1977.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner assess a civil penalty against respondent's license in the amount of twenty-five dollars ($25.00).

DONE and ENTERED this 27th day of February, 1978, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Mr. Francis Bayley, Esquire The Johns Building

725 South Bronough Street Tallahassee, Florida 32304

Mr. W. R. Phillips, Esquire Post Office Box 594 Carrabelle, Florida 32322

Docket for Case No: 78-000010

Orders for Case No: 78-000010