STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) BUSINESS REGULATION, DIVISION ) OF ALCOHOLIC BEVERAGES AND )

TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 83-550

) ACTION "1" DISTRIBUTING, INC. )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this matter by Marvin E. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on March 16, 1983, in Ft. Myers, Florida.

APPEARANCES

For Petitioner: Janice G. Scott, Staff Attorney

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

For Respondent: Susan F. Svedin

282A Southeast 18th Court Cape Coral, Florida 33904

ISSUES AND BACKGROUND

This case concerns the issue of whether the Respondent's beverage license should be suspended, revoked, or otherwise disciplined for failure to remit taxes for the months of June and July, 1982.

On September 14, 1982, Petitioner served a notice to show cause on the Respondent, Action "1" Distributing, Inc. The notice to show cause alleged that the Respondent had failed to remit $38,692.80 taxes due to have been remitted with Respondent's June 10, 1982, monthly alcoholic beverage report and $5,749.40 required to have been remitted with Respondent's July 10, 1982, monthly alcoholic beverage report. The matter was referred to the Division of Administrative Hearings for a formal hearing, and pursuant to notice, the formal hearing was scheduled for March 16, 1983. At that hearing, the Respondent was represented by Susan Svedin, who after inquiry, was determined to be a proper representative of the company.

At the formal hearing, the Petitioner called as its witnesses Lt. Thomas Stout, Supervising Beverage Agent Officer for the Ft. Myers District, Beverage Officer Robert Baggett, and Sharon Fox, Auditor for the Division of Alcoholic

Beverages and Tobacco. Petitioner offered into evidence seven exhibits which were admitted without objection. Susan Svedin testified on behalf of the Respondent.

Counsel for the Petitioner submitted proposed findings of fact and conclusions of law to be considered by the undersigned Hearing Officer. To the extent that such proposed findings of fact and conclusions of law are not adopted in this order, they were considered by the undersigned Hearing Officer and determined to be irrelevant to the issues in this cause or not supported by the evidence.

FINDINGS OF FACT

1. Respondent-holds Alcoholic Beverage License No. 46-945, Series J-DBW. Until it ceased to do business and dissolved, the Respondent operated an alcoholic beverage distributing business located at 3955 Edwards Street, Ft. Myers, Florida.

   
   

2. Florida Statute Section 563.05 requires all distributors of malt beverages in Florida to pay an excise tax on beverages sold.

   
   

3. Pursuant to Florida Statute 561.55 (1981), the Respondent submitted its wholesale distributors beer tax report for June, 1982, to the Division of Alcoholic Beverages and Tobacco. (See Petitioner's Exhibit 2). That report showed that for the calendar month of June, the Respondent had excise taxes due of $38,692.80. Subsequent to the filing of that report, Sharon Fox, an auditor for the Division of Beverage, performed an audit of the June, 1982, report and determined that it was correct and accurate and that the tax reflected in that report as due was correct. The tax in the amount of $38,692.80 was in fact the correct amount due and owing and was never remitted to the Division of Alcoholic Beverages and Tobacco.

   
   

4. Respondent also submitted its monthly beer tax report for July, 1982, and in that report computed the excise tax owed to be 5,759.40. (See Petitioner's Exhibit 3). After receiving this report, the Division of Alcoholic Beverages and Tobacco performed an audit of the matters contained within that report and found them to be correct in all respects. The report correctly stated the tax due the Division of alcoholic Beverages and Tobacco from Respondent to be 5,759.40. Respondent has not paid any portion of that tax.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties and the subject batter of this proceeding.

   
   

6. The Division of Alcoholic Beverages and Tobacco is empowered under Florida Statute 561.29 to suspend or revoke an alcoholic beverage license, or impose a civil penalty for any violation by the licensee of the laws of the State of Florida including Chapter 561, the Beverage Law.

   
   

7. Section 563.05, Florida Statutes, requires all distributors of malt beverages to Day an excise tax of five cents on each pint of beer or fashion thereof in a container which is sold by the distributor. It was this tax which was computed by Respondent in its June, 1982, and July, 1982, monthly reports.

   
   

8. Florida Statute Section 561.50 requires that the alcoholic beverage tax, referred to above, he remitted with and accompany the monthly report

   required by Section 561.55. Section 561.55 requires each manufacturer, distributor, broker, sales agent, and importer to keep complete records and to submit monthly reports to the Division of Alcoholic Beverages and Tobacco containing certain specified information. It was pursuant to this section that the Respondent filed its June and July, 1982, monthly reports.

   
   

9. Respondent filed its monthly reports for June and July, 1982, but failed to remit the taxes due for those months with the monthly reports. Such failure to remit and pay the excise taxes due constitutes a violation of Section 561.50(1), and, therefore, a violation of 561.29(1)(a).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That Respondent's Alcoholic Beverage License No. 46-945, Series J-DBW, be revoked.

DONE and ENTERED this 29th day of April, 1983, in Tallahassee, Florida.

MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1983.

COPIES FURNISHED:

Ms. Janice G. Scott Ms. Susan F. Svedin

Staff Attorney 2824 S.E. 18th Court Department of Business Cape Coral, Florida 33904

Regulation

725 South Bronough Street Tallahassee, Florida 32301

Mr. Gary Rutledge Secretary

Department of Business Regulation

725 South Bronough Street Tallahassee, Florida 32301

Mr. Howard M. Rasmussen Director

Division of Alcoholic Beverages and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 83-000550

Orders for Case No: 83-000550