STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2150

) DABT NO. 8-77-50-A

SOUTH FLORIDA LIQUOR )

DISTRIBUTORS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for final hearing in Miami, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on December 6, 1978. The parties were represented by counsel:

APPEARANCES

For Petitioner: Dennis E. LaRosa, Esquire

Staff Attorney

725 South Bronough Street Tallahassee, Florida 32304

For Respondent: Charles L. Curtis, Esquire

200 Southeast First Street, Suite 808 Miami, Florida 33131

By notice to show cause, petitioner alleged that respondent "[o]n or about the 29th of July, 1977, . . . did conspire with PIEROTH BROTHERS, INC., and SHELL'S CITY LIQUORS to sell SHELL'S LIQUORS merchandise at a price not available to other vendors, in violation of F.S. 561.42 . . . [and] contrary to

1. 562.23;" and that respondent did, at the same time, "assist a retail vendor, to wit: SHELL CITY LIQUORS, by the giving of gifts, loans of money or property or by the giving of rebates . . . by selling merchandise at a price not available to other vendors . . . contrary to F.S. 561.42(1)."

   
   

   FINDINGS OF FACT

   
   

   1. At the hearing, the parties stipulated that so much of the attached narrative as has not been lined out accurately recites all facts pertinent to the present dispute. This narrative, as redacted by counsel, is hereby adopted and made a part of the recommended order.

      
      

      CONCLUSIONS OF LAW

      
      

   2. A licensed distributor like respondent is forbidden to "assist any vendor by any gifts or loans of money or property of any description or by the

      giving of any rebates of any kind whatsoever. Section 561.42(1), Florida Statutes (1977). The agreed upon statement of facts and the exhibits received in evidence establish that respondent assisted a vendor of alcoholic beverages by selling the vendor six cases and three bottles of Flonheimer Adelberg Eiswein Auslese at less than a quarter of the going price. Pieroth Wine Imports, Inc. (Pieroth), an importer not licensed in Florida, had supplied the wine to respondent. Respondent sold the wine to the vendor at Pieroth's instance and was subsequently reimbursed by Pieroth in the amount of $1,373.76.

      
      

   3. Because it rendered such assistance to a vendor as part of an agreement with Pieroth's employees, respondent is also guilty of a conspiracy to violate Section 561.42(1), Florida Statutes (1977), which is itself a violation of Section 562.23, Florida Statutes (1977). Both violations arise out of a single transaction, however.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMEND:

That petitioner impose a civil penalty against respondent in the amount of one thousand dollars ($1,000.00).

DONE and ENTERED this 29th day of December, 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:

Dennis E. LaRosa, Esquire Staff Attorney

725 South Bronough Street Tallahassee, Florida 32304

Charles L. Curtis, Esquire

200 Southeast First Street Suite 808

Miami, Florida 33131

Docket for Case No: 78-002150

Orders for Case No: 78-002150