STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2108

) DABT NO. 31402-A ROSIE L. LEE t/a LEE'S GROCERY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, at 9:00 a.m., November 6, 1979, at the Park Trammel Building, 1313 Tampa Street, Tampa, Florida.

APPEARANCES

For Petitioner: Daniel Brown, Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Rose L. Lee

2204 Central Avenue

Tampa, Florida 33602 ISSUE

Whether on or about May 23, 1979, the Respondent, Rose L. Lee, a licensed vendor, her agent, servant or employee, towit: Columbus Lee, did possess, deposit or conceal on her licensed premises unstamped cigarettes, to wit:

ninety-five packs, not in excess of fifty cartons, contrary to the provisions of Subsection 210.18(6)(a), Florida Statutes, thereby subjecting the licenses to the penalties found in Subsection 561.29(1)(a), Florida Statutes.

FINDINGS OF FACT

1. This case is presented for consideration based on the Notice to Show Cause filed by the Petitioner, Division of Alcoholic Beverages and Tobacco, against Rose L. Lee, who trades as Lee's Grocery. The exact details of the allegation are as found in the issue statement of this Recommended Order, which comments are hereby incorporated into the Findings of Fact.

   
   

2. The Petitioner, Division of Alcoholic Beverages and Tobacco, is a division of an agency of State Government, namely, a part of the State of Florida, Department of Business Regulation. One of the functions which the Division of Alcoholic Beverages and Tobacco serves is to regulate those individuals who are licensed to sell alcoholic beverages in the State of

   Florida. The Respondent, Rose L. Lee, who trades as Lee's Grocery in a location at 2210 Central Avenue, Tampa, Hillsborough County, Florida, is a holder of an alcoholic beverage license issued by the Petitioner. That license number is 39- 0292 and all times pertinent to these proceedings the Respondent held such license.

   
   

3. On May 23, 1979, Officer Donald Clifford Levengood went to the licensed premises. Officer Levengood is an employes of the Division of Alcoholic Beverages and Tobacco. The purpose of Officer Levengood's visit was twofold. First, Officer Levengood was there to make a routine inspection of the licensed premises, as is authorized by the statutes which regulate the sale of alcoholic beverages. The second reason that Officer Levengood went to the licensed premises was based upon certain information that he had obtained from an informer, to the effect that cigarettes not bearing the proper Florida tax stamp were sold in the vicinity of the Respondent's licensed premises. The testimony did not reveal that the Respondent had sold that class of cigarettes from her store prior to the officer's inspection.

   
   

4. When Officer Levengood arrived at the licensed premises, he spoke with the store manager, one Columbus Lee, the husband of the Respondent. Lee had been running the store as manager for a considerable period of time, to include the month of May, 1979. In keeping with a checklist Officer Levengood began to check items against that list and in that Process found a pack of Pall Mall cigarettes in the licensed premises in a location where the cigarettes were being offered for sale. Levengood noted that this particular pack did not show a Florida tax stamp and after removing this pack from its location he proceeded to remove a number of other packs, all of which were missing the necessary Florida tax stamp. All total, there were fifteen packs in this location which did not evidence the proper Florida tax stamp. Those items were removed from the licensed premises and placed in a bag and those packs and bag were admitted in the course of the hearing as Petitioner's Exhibit No. 1. Further inspection by the officer uncovered eight cartons of Pall Mall cigarettes and those cigarette containers did not carry the necessary Florida tax stamp. Those cartons were consolidated into a bag and became the Petitioner's Exhibit No. 2. Admitted into evidence in the course of the hearing. (By agreement between the parties, the items of evidence were left in the custody and control of the District Office of the Division of Alcoholic Beverages and Tobacco located in Tampa, Florida.)

   
   

5. Columbus Lee, when questioned about the origins of those packs of cigarettes that were missing the Florida tax stamps, indicated that a couple of days before the inspection he had purchased ten cartons of Pall Mall cigarettes from persons who were vending these cigarettes from their car at a location across the street from the licensed premises.

   
   

6. The number of total packs of cigarettes was ninety-five (95), which is less than fifty (50) cartons.

   
   

7. The Respondent, Rose L. Lee, was not in attendance at the licensed premises on May 23, 1979, at the time that the employee of the Petitioner discovered the unstamped cigarettes.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this action.

9. The Administrative Complaint charges the Respondent, Rosie L. Lee, with a violation of her license condition. It does so by asserting that Columbus Lee, acting as her agent, servant or employee, possessed, deposited or concealed on the licensed premises unstamped cigarettes in the amount of ninety-five (95) packs, not in excess of fifty (50) cartons, contrary to Subsection 210.18(6)(a), Florida Statutes. That provision of law states:

   
   

   (6)(a) Every person, firm, or corporation, other

   than a licensee under the provisions of this chapter, who possesses, removes, deposits, or conceals, or aids in the possessing, removing, depositing, or conceal- ing of, any unstamped cigarettes not in excess of 50 cartons shall be guilty of a misdemeanor of the sec- ond degree, punishable as provided in s.775.082, s.

   775.083, or s.775.084. In lieu of the penalties provided in said sections, however, the person, firm, or corporation can pay the tax plus a penalty equal to the amount of the tax authorized under section 210.02 on the unstamped cigarettes.

   
   

   Clearly, under the facts as presented, Columbus Lee, the husband and agent an employee of the Respondent, did have in his possession on May 23, 1979, ninety- five (95) packs of Pall Mall cigarettes which did not carry the necessary stamps and for that reason, it is demonstrated that Columbus Lee could be found guilty of a misdemeanor of the second degree punishable as Provided in Sections 775.082, 775.083 and 775.084, Florida Statutes. Moreover, the acts of Columbus Lee, the agent and employee of the Respondent, could subject the Respondent to the penalties found in Subsection 561.29(1)(a), Florida Statutes, which can be brought about by a violation such as has been factually committed by Columbus Lee. That provision of Chapter 561 states:

   
   

   561.29 Revocation and suspension of license; power to subpoena; hearing; appeal to courts.--

   1. The Division of 1/ [Alcoholic Beverages and Tobacco] is given full power and authority to revoke or suspend the license of any person holding a license under the Beverage Law, when it is determined or found by the division upon sufficient cause appearing of:

      1. Violation by the licensee or his or its agents, officers, servants, or employees, on the licensed premises, or elsewhere while in the scope of employ- ment, of any of the laws of this state or of the United States, or violation of any municipal or county regu- lation in regard to the hour of sale, service, or con- sumption of alcoholic beverages, or engaging in or permitting disorderly conduct on the licensed premises, or permitting another on the licensed premises to violate any of the laws of this state or of the

   United States; except that whether or not the licensee or his or its agents, officers, servants, or employees have been convicted in any criminal court of any violation as set forth in this paragraph shall not

   be considered in proceedings before the Division of 1/ [Alcoholic Beverages and Tobacco] for suspension or revocation of a license except as permitted by

   Chapter 92 or the rules of evidence.

10. Under the facts as presented, the Respondent is subject to revocation or suspension of her license based upon the acts of Columbus Lee, in view of the fact that she should have known that Columbus Lee had possessed and deposited the subject cigarettes on the licensed premises. Therefore, the Respondent is subject to revocation or suspension, or in the alternative a civil penalty authorized by Subsection 561.29(4), Florida Statutes.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it is recommended that the Respondent, Rosie L. Lee, be fined in the amount of Two Hundred Fifty Dollars ($250.00) and in the event that the Respondent fails to pay that fine within thirty (30) days of the date of the final order, that her license to sell alcoholic beverages be suspended for a period of thirty (30) days.

DONE and ENTERED this 16th day of November, 1979, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Daniel Brown, Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Rose L. Lee t/a Lee's Grocery 2204 Central Avenue

Tampa, Florida 33602

Docket for Case No: 79-002108

Orders for Case No: 79-002108