STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3658

) ROBERT G. HAMMOND, t/a BOB & DOT ) SHOPPETTE, )

)

Respondent. )

)

RECOMMENDED ORDER

Formal hearing was held in this matter before Marvin E. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on February 2, 1984, in Gainesville, Florida.

APPEARANCES

For Petitioner: James N. Watson, Esquire

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

For Respondents: Robert G. Hammond, pro se

1000 Reid Street

Palatka, Florida 32077 ISSUES AND BACKGROUND

This case concerns the issue of whether Respondent's beverage license should be suspended, revoked or otherwise disciplined for a conviction for unlawful trafficking in food stamps.

This matter was noticed for hearing by a Notice of Hearing, dated January 9, 1984. The hearing was scheduled for February 2, 1984, and on the afternoon of February 1, 1984, the secretary of the undersigned Hearing Officer received a telephone call from the secretary of an attorney who had apparently been retained to represent the Respondent in this matter. The purpose of the telephone call was to say that the attorney would be unable to attend. No motion for continuance was filed and no proper grounds for a continuance were presented to the Hearing Officer. At the hearing on February 2, 1984, Mr.

Robert G. Hammond appeared and requested a continuance due to the fact that his attorney could not attend. However, Mr. Hammond was unable to give any ground or reasons for the failure of the attorney to attend. The motion for continuance was denied and the Division of Alcoholic Beverages and Tobacco was allowed to present its evidence. At that time, an order was entered on the record giving the Respondent 20 days within which to file in writing a request

for opportunity for the Respondent to present evidence on his behalf at a subsequent hearing and the grounds why such relief should be granted. As of the date of this order, neither the Respondent nor any attorney on his behalf has filed any motion or other request with the Hearing Officer pursuant to that order. This order is therefore being entered upon the record and the evidence presented by the Division of Alcoholic Beverages and Tobacco at the formal hearing on February 2, 1984.

FINDINGS OF FACT

1. At all times materal to this proceeding, the Respondent, Robert G. Hammond, was the holder of Beverage License No. 64-183, Series No. 2-APE. That license is issued to the licensed premises located at 1000 Reid Street, Palatka, Florida.

   
   

2. On September 23, 1983, the Respondent, Robert G. Hammond entered a plea of guilty to the charge of fraud under Florida Statute 409.325(2). Based upon that guilty plea, the Respondent was sentenced to six months confinement in the Putnam County Jail and five years probation under certain specified conditions of probation.

   
   

3. The offense to which the Respondent pleaded guilty and for which he was adjudicated guilty has a maximum sentence of five years imprisonment and/or a

   $5,000 fine and is a felony of the third degree under Florida law.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

5. Section 561.29, Florida Statutes (1983), empowers the Division of Alcoholic Beverages and Tobacco to suspend or revoke the license of any person when it is determined by the Division upon sufficient cause that a violation of the specific provisions of Section 561.29 has occurred.

1. Section 561.29(b), Florida Statutes (1983), provides that a violation by the licensee of any laws of this State or any state or territory of the United States is a ground for revocation or suspension of the beverage license held by that licensee.

   
   

2. Section 561.15(2), Florida Statutes (1983), provides that no beverage license shall be issued to any person who has been convicted in the last past 15 years of any felony in this State or any other state of the United States. Section 561.15(3), Florida Statutes (1983), further provides that any license issued to a person, firm, or corporation that would not qualify for the issuance of a new license or the transfer of an existing license may be revoked by the Division.

   
   

3. The evidence in the instant case establishes that the Respondent pleaded guilty to and was adjudicated guilty of a violation of Florida Statute 409.325(2), which provides:

   
   

   1. Any person who knowingly:

      1. Uses, transfers, acquires, traffics, alters, forges, or possesses, or

      2. Attempts to use, transfer, acquire, traffic, alter, forge, or possess, or

      3. Aids and abets another person in the use, transfer, acquisition, traffic, alteration, forgery, or possession of,

         a food stamp, a food stamp identification card, an authorization for the purchase of food stamps, a certificate of eligibility for medical services, or a Medicaid identification card in any manner not authorized by law is guilty of a crime and shall be punished as provided in subsection

         (5) For the purposes of this section, the value of an authorization to purchase food stamps shall be the difference between the coupon allotment and the amount paid by the recipient for that allotment.

         
         

         This clearly constitutes a violation of the laws of this State and thus a violation of Florida Statute 561.29(1)(b). The specific violation to which the Respondent entered a plea of guilty was a felony of the third degree and Respondent's conviction of this felony would disqualify him for an issuance of a new license under Section 561.15(1), Florida Statutes, and therefore, constitutes a grounds for revocation as provided in Section 561.15(2), Florida Statutes.

         
         

4. Having been convicted of a felony, the Respondent ceases to meet the qualifications required in order to hold a beverage license as provided in Florida Statute 561.15 (1981). Further, the violation for which the Respondent entered a guilty plea was for knowingly dealing in Food Stamps in an unlawful manner. From such knowing and intentional behavior and based upon the conviction of a felony, it is concluded that appropriate penalty in this case is the revocation of the Respondent's beverage license.

RECOMMENDATION

Based upon the foregoing facts and conclusions of law, it is RECOMMENDED:

That the Division of Alcoholic Beverages and Tobacco enter a final order finding the Respondent guilty of the charge as set forth in the Notice to Show Cause and revoking Respondent's Beverage License No. 64-183.

DONE AND ORDERED this 18th day of May 1984, in Tallahassee, Florida.

MARVIN E. CHAVIS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 18th day of May 1984.

COPIES FURNISHED:

Howard M. Rasmussen, Director Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Robert G. Hammond 1000 Reid Street

Palatka, Florida 32077

Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 83-003658

Orders for Case No: 83-003658