STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 80-045

)

MICHAEL R. SHINN, d/b/a )

MICHAEL'S DRIVE THRU, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Lauderhill, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on July 22, 1980.

APPEARANCES

For Petitioner: James M. Watson, Jr., Esquire

725 South Bronough Street Tallahassee, Florida 32301

For Respondent: No appearance.

By notice to show cause, petitioner alleged that "[o]n or about November 2, 1979, . . . [respondent Shinn] did possess, deposit or conceal non Florida tax paid cigarettes, to wit: 936 packs, contrary to F.S. 210.18(6)(b)." The notice to show cause also alleged that the cigarettes in question had been "obtain[ed] . . . for the purpose of resale, from a person, firm or corporation which did not hold a valid wholesale dealer's permit, contrary to

1. 120.15(1)(h)." At the final hearing, petitioner was granted leave to amend so as to charge a violation of Section 210.15(1)(I) , Florida Statutes (1979) , rather than a violation of Section 120.15(1)(h) , Florida Statutes (1979).

   
   

   FINDINGS OF FACT

   
   

   1. On November 2, 1979, petitioner's Officer Favitta visited respondent's premises in order to notify respondent that his beverage license had been suspended for failure to pay a civil penalty. While on the premises, Officer Favitta discovered a display rack full of cigarette packages stamped in red ink with a certain meter number. He confiscated 936 packages of cigarettes so stamped from the display rack. Other packages of cigarettes in a storage room nearby were similarly imprinted. The meter number appearing on each cigarette package had been assigned to Barone Sales, a wholesale dealer in cigarettes who sells cigarettes marked in this fashion to the Seminole Indians. Red ink is used to signify that cigarette tax has not been paid and that the cigarettes are destined for the reservation.

   2. Respondent admitted to Officer Favitta buying the cigarettes on the reservation, but argued that this was lawful so long as no more than three cartons were purchased at one time.

      
      

      CONCLUSIONS OF LAW

      
      

   3. Pursuant to Section 210.18(6)(b), Florida Statutes (1979), any person who does not hold a cigarette wholesaler's license "who possesses . . . any unstamped cigarettes in excess of 50 cartons is presumed to have knowledge that they have not been taxed and is guilty of a felony In the present case, no evidence was adduced as to whether respondent held a cigarette wholesaler's license, or as to the number of cigarette packages in a carton, but the evidence did show that the cigarette packages in respondent's possession were stained.

      No evidence suggested that respondent knew the significance of the red ink. Petitioner did not establish that despondent was guilty of a violation of Section 210.18(()(b) , Florida Statutes (1979).

      
      

   4. Petitioner also alleged a violation of Section 210.15(1)(h), Florida Statutes (1979), which provides:

No retail sales of cigarettes

may be made at a location for which

a wholesale dealer, distributing agent, or exporter permit has been issued.

The excise tax on sales made to any traveling location, such as an itinerant store or industrial caterer, shall

be paid into the General Revenue Fund unallocated. Cigarettes may be purchased for retail purposes only from a person holding a wholesale dealer permit. The invoice for the purchase of cigarettes must show the place of business for which the purchase is made and the cigarettes cannot be transferred to any other place of business for the purpose

of resale.

Apparently, petitioner's theory under this statutory provision is that the person or persons who sold respondent the cigarettes in question did not hold a wholesale dealer permit at the time. There was no proof one way or the other on this point, however.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That respondent dismiss the notice to show cause.

DONE and ENTERED this 29th day of July, 1980, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

James M. Watson, Jr., Esquire 725 South Bronough Street Tallahassee, Florida 32301

Michael R. Shinn

244 S.W. 3rd Place Dania, Florida 33004

Docket for Case No: 80-000045

Orders for Case No: 80-000045