STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2943

) JOE D RHUE, D/B/A J'S CUT RATE ) VARIETY CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, on October 17, 1983, in Fort Lauderdale, Florida. The issue for consideration in this case was whether Respondent's beverage license should be disciplined because of the misconduct alleged in the Administrative Complaint.

APPEARANCES

For Petitioner: John A. Boggs, Esquire

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

For Respondent: Daughtin J. Rhue, pro se

1415 Northwest Fifth Street Fort Lauderdale, Florida

BACKGROUND

On September 15, 1983, Petitioner filed with the Division of Administrative Hearings a Notice to Show Cause which alleges two violations of Section 210.18, Florida Statutes (1981), by Respondent in that he purportedly possessed and concealed 12 packs of nontaxed cigarettes. At the time the Notice to Show Cause was filed, it had attached to it an exculpatory statement by Respondent dated May 26, 1983, and a request for hearing dated August 29, 1983.

At the hearing, Petitioner presented the testimony of Beverage Agent D'Ambrosia and Beverage Captain Boyd and Petitioner's Exhibit 1, the cigarettes in question. Respondent testified in his own behalf and presented Respondent's Exhibit A, his invoices for all cigarettes purchased for his business during May, 1983.

FINDINGS OF FACT

1. At all times pertinent to these proceedings, Respondent, Daughtin J. Rhue, operated a business, J's Cut Rate Variety Center, in Fort Lauderdale, Florida, under a Series 2-APS beverage license, No. 16-731, issued by Petitioner.

   
   

2. On May 26, 1983, Beverage Officer D'Ambrosia entered Respondent's place of business on a matter unrelated to the offenses charged here (nonpayment of Florida sales tax). While there, he noticed several packs of cigarettes on the shelf behind the counter which appeared to be nontaxed cigarettes. These cigarettes, which he knew to be untaxed because of the red meter stamp imprinted on the bottom of the packs (tax-paid cigarettes have a black metered stamp on the bottom of the pack), were mixed in with the tax-paid cigarettes offered for sale by Respondent.

   
   

3. Mr. D'Ambrosia said nothing about this to Respondent at that time, but then conducted a search elsewhere in the store for other nontaxed cigarettes and could find none. When he came back to the counter again, he found that those packs which bore the red, nontaxed stamp had been reversed on the shelf so that the stamps were not facing outward as they had been previously. Along with Respondent, he examined all the cigarettes on the shelves and found 12 packs that bore the red, nontaxed stamp. There were 7 packs of Lark Lights 100s, 3 packs of Kool Super Lights, 1 pack of Benson & Hedges Menthol and 1 pack of Marlboro. The stamp these packs bore is issued only to the Indians, and cigarettes so marked and stamped are not for resale to non-Indian consumers. No other nontaxed cigarettes were found at that time either on the shelves or elsewhere in the store.

   
   

4. However, review of the file on Respondent's license indicates that in April, 1979, Respondent was previously found to have 254 packs of untaxed cigarettes in his store for resale. Action was taken at that time pursuant to stipulation between the parties.

   
   

5. Respondent admits the nontaxed cigarettes were on his shelves on May 26, 1983, but denies having known it prior to it being pointed out to him by the beverage agent. He contends that he orders all cigarettes for the store from only two vendors, Pueblo and Wholesale Plus, Inc., and that his employee picks them up from the wholesaler and stocks the shelves. Further, he denies purchasing or stocking the brands untaxed on his shelves. He also denies that the untaxed packs were touched during the visit by Mr. D'Ambrosia, indicating that they were not turned around as alleged.

   
   

6. Notwithstanding Respondent's protestations, the untaxed cigarettes were, by his own admission, offered for sale on his shelves The dispute as to whether he knew the untaxed cigarettes were there is resolved against him. He states he worked there every day. It is unlikely he was not aware of their presence.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

   
   

8. Respondent is alleged to have violated Sections 210.18(1) and (6)(a), Florida Statutes (1981), by possessing, for the purpose of sale, untaxed cigarettes and by unlawfully possessing untaxed cigarettes.

9. These statutory provisions state:

   
   

   1. Any person who possesses or transports any unstamped packages of cigarettes upon the public highways, roads,

      or streets in the state for the purpose of sale, or, who sells or offers for sale unstamped packages of cigarettes in violation of the provisions of this chapter, or, who willfully attempts in any manner to evade or defeat any tax imposed by this chapter, or the payment

      thereof, shall be guilty of a misdemeanor of the first degree, punishable

      as provided in s. 775.082 or s. 775.083. Any person, who shall have been convicted of a violation of any provision

      of the cigarette tax law and shall thereafter be convicted of a further violation of the cigarette tax law, shall, upon conviction of said further offense, be guilty of a felony of the third degree, punishable as provided in s. 775.082, s.

      775.083, or s. 775.084.

      * * *

      (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 concealing of, any unstamped cigarettes not in excess of

      50 cartons shall be guilty of a misdemeanor of the second 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 may pay the tax plus a penalty equal to the amount of the tax authorized under

      s. 210.02 on the unstamped cigarettes.

      
      

10. Mr. Rhue does not deny the cigarettes in question were there, that they were untaxed cigarettes, and that under the law, he should not have had them in his possession, and most certainly not for resale. His contention that he did not know they were there is not persuasive in light of the fact they were out in plain view on the shelf directly behind the cash register and Mr. Rhue worked there every day. It matters not that his formal cigarette orders do not include this brand of cigarette. Presumably, a legitimate wholesaler would not sell untaxed cigarettes to someone not entitled to them.

    
    

11. Further, this is not Mr. Rhue's first encounter with this type of activity. Having once been burned, it is likely that if he were not disposed to again sell untaxed cigarettes, he would check his stock more often to insure none was there for sale. It is, therefore, reasonably certain that he knew the

    cigarettes were there and, as such, is in violation of the statutes cited and Section 561.29(1)(a), Florida Statutes (1981).

    
    

12. Since this is a repeated offense, a more stringent penalty may be applied than would normally be applied in a case such as this, though both allegations, here, should be treated as one, as they are multiplicious for punishment purposes.

    
    

13. The Petitioner has submitted a proposed recommended order which includes proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law above. They have otherwise been rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That Respondent's alcoholic beverage license, Series 2-APS, No. 16-731, be suspended for thirty (30) days and that Respondent pay an administrative fine of

$500.

RECOMMENDED this 8th day of November, 1983, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 8th day of November, 1983.

COPIES FURNISHED:

John A. Boggs, Esquire Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32301

Mr. Daughtin J. Rhue 1415 N.W. Fifth Street Fort Lauderdale, Florida

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

Docket for Case No: 83-002943

Orders for Case No: 83-002943