STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE No. 90-5991

)

BOYD'S SERVICE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, James E. Bradwell held a formal hearing in this case on February 21, 1991 in St. Petersburg, Florida.

APPEARANCES

For Petitioner: Eric S. Haug, Esquire

Assistant General Counsel Department of Business

Regulation

725 S. Bronough Street Tallahassee, Florida 32399-1007

For Respondent: Leslie Boyd, President

Boyd's Service, Inc. 1500 22nd Street South

St. Petersburg, Florida 33712 STATEMENT OF THE ISSUE

Whether or not Respondent engaged in conduct amounting to trafficking in, or endeavoring to traffic in, merchandise which was stolen and, if so, what, if any, disciplinary sanctions should be imposed.

PRELIMINARY STATEMENT

By its notice to show cause filed herein dated July 31, 1990, Petitioner seeks to impose disciplinary sanctions against Respondent's Alcoholic Beverages and Tobacco license/cigarette permit. Respondent has filed a formal request for a hearing denying that he engaged in any conduct set forth in notice to show cause filed herein. On September 21, 1990, the matter was transferred to the Division of Administrative Hearings for the assignment of a hearing officer to conduct a formal hearing. The parties filed responses to the initial order and

on October 29, 1990, the matter was initially noticed for hearing for November 30, 1990. Following a motion for continuance, a notice of hearing dated January 22, 1991 was issued scheduling the case for hearing for February 21, 1991.

At the hearing, Petitioner presented the testimony of Craig Parsons, law enforcement investigator, Florida Department of Business Regulation, Division of Alcoholic Beverages and Tobacco and detectives Glen Henry and Luke Williams, officers of the St. Petersburg Police Department. Petitioner introduced four exhibits which were received in evidence at the hearing. Respondent testified on his behalf and offered no exhibits. Following the hearing, the parties were allowed through March 5, 1991 to submit proposed recommended orders.

Petitioner's proposed recommended order is substantially adopted in this recommended order. Respondent filed a letter denying that he engaged in any proscribed conduct as alleged in the notice to show cause filed herein.

Respondent's denial was rejected for reasons stated hereinafter in this recommended order.

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, the following relevant facts are found:

FINDINGS OF FACT

1. During times material hereto, Respondent, Boyd's Service, Inc., was under the control and operation of its owner, Leslie Boyd.

   
   

2. Respondent holds Alcoholic Beverage license no. 62-03664, series 2-APS, for a premises known as Boyds Service located at 1500 22nd Street South in St. Petersburg, Pinellas County, Florida.

   
   

3. Commencing on or about January 12, 1990, Petitioner, the Division of Alcoholic Beverages and Tobacco, engaged in a cooperative effort with the St. Petersburg Police Department by conducting a "sting" investigation of eight businesses in the south St. Petersburg area to determine if the owners of such businesses were trafficking in stolen property. Investigators Craig Parsons, Ira McQueen, Priscilla Turner, and David Henry, all employees of Petitioner and Detectives Glen Henry, Luke Williams, Johnny Harris, Tom Kewin, and Rod Adams of the St. Petersburg Police Department participated in the sting investigation.

   
   

4. On or about January 12, 1990, Detective Harris, while monitored by Investigator Parsons and Detective Henry, entered Respondent's licensed premises in an undercover capacity as part of the sting investigation and Detective Harris discussed with Respondent his desire to purchase property that Detective Harris asserted was stolen, to wit, several cartons of "Kool Kings" cigarettes. Respondent expressed a willingness to buy stolen property from Detective Harris but that he needed Newport cigarettes. Detective Harris indicated to Respondent that he would return on a later date with stolen Newport cigarettes for Respondent to purchase.

   
   

5. On or about January 19, 1990, Detective Harris, while monitored by investigator Parsons and Detective Williams, drove to Respondent's premises accompanied by Investigators McQueen and Turner as part of the sting investigation. Detective Harris parked in front of Respondent's premises and exited his vehicle. Detective Harris approached Respondent and related "I have five cartons of Newport 100's for you which I stole the other day". Respondent asked Detective Harris where the merchandise was and inquired if he was "wired".

   Detective Harris exited the premises, returned to his vehicle, removed the cigarettes that he asserted were stolen and reentered Respondent's business. Respondent handed Detective Harris $30.00 in exchange for the cigarettes.

   
   

6. On or about January 24, 1990, Detectives Harris and Williams, while monitored by Investigator Parsons, Detectives Henry and Kewin, reentered Respondent's licensed premises as part of the sting investigation. While there, Detective Harris introduced Respondent to Detective Williams identifying him as "Pete" and further identifying him as his buddy who works at Pace Warehouse who was stealing the property which Detective Harris was selling to Respondent. Detective Harris told Respondent that he had in his vehicle which was parked in front of Respondent's business, five cartons of Kool King cigarettes and five cases of Colt 45 beer which he asserted to be stolen. Respondent asked to see the merchandise whereupon they exited the licensed premises and the detectives opened the trunk of their vehicle to display the "stolen" merchandise. Respondent agreed to "buy it all" and directed the detectives to drive their vehicle around to the back of his premises into an attached garage area. A discussion ensued from which Respondent admitted that he had previously been arrested of dealing in stolen property and if they (the detectives) were "setting him up" he would kill them. Respondent directed the detectives to unload the property from their vehicle into the garage area. While doing so, Respondent walked to the front of the store and returned with the money in exchange for the merchandise.

   
   

7. On or about January 29, 1990, Detective Williams, while monitored by Detectives Henry and Kewin, reentered Respondent's licensed premises as part of the ongoing sting investigation. While there, Detective Williams approached Respondent and related "I kept you in mind" to which Respondent related "I think I know what you're talking about". Detective Williams then stated to Respondent "I stole some more stuff from Pace". Respondent then asked to see the merchandise whereupon the Detectives told Respondent that they had a "trunk full of stuff, they don't even know it's gone yet". Detective Williams related having about nine cases of beer and some cigarettes which he agreed to let Respondent purchased for $60.00. Respondent agreed to make the purchase whereupon Detective Williams and Respondent exited the licensed premises and Detective Williams opened the trunk of his vehicle to display the merchandise. Respondent directed Detective Williams to bring the beer into the licensed premises and Respondent removed two cartons of Newport 100's and two cartons of Kool cigarettes which he (Respondent) carried into the licensed premises. Upon reentering the licensed premises, Detective Harris and Respondent negotiated a price for the merchandise. Respondent tendered Detective Williams $36.00 from the cash register in exchange for the "stolen" merchandise. Before leaving, Detective Williams advised Respondent that he would have to slack off from stealing from Pace because he had taken quite a bit over the past week. Respondent requested that Detective Williams bring him some cigarettes and some more Old Milwaukee beer concluding that he could not buy what he could not sell and that he still had some Colt 45 left from his last purchase.

   
   

8. On or about January 30, 1990 Officer Adams entered Respondent's licensed premises on two separate occasions and purchased two cans of Colt 45 beer, two packs of Newport 100's and four packs of Kool cigarettes. These items were turned over to Detective Henry who secured their custody until the hearing herein. Upon examination, it is determined that three of the four packs of Kool cigarettes had an Indian tax exempt stamp affixed and the two packs of Newport 100's had an extra pin dot affixed to the state tax seal. These were specific identifying marks which the detectives had affixed to identify property which they sold to Respondent during the course of the sting investigation.

9. On or about March 29, 1990, Detectives Williams, Henry, Kewin and Investigators Parsons and Merrill reentered the licensed premises and arrested Respondent. Respondent was transported to the St. Petersburg Police Department where his Miranda rights were explained to him. He was thereafter interviewed by Detective Henry and Investigator Merrill. During the course of the interview, Respondent was allowed to listen to a cassette tape which contained a recording of a conversation which took place on the licensed premises on January 19, 1990 between Respondent and Detective Harris. In that tape, Respondent is heard agreeing to purchase the stolen property. Respondent admitted it was his voice on the tape and confessed to Detective Henry and Investigator Merrill that he had previously purchased property which was allegedly stolen from them on three different occasions.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

    
    

11. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

    
    

12. The authority of the Petitioner is derived from Chapter 561, Florida Statutes.

    
    

13. Respondent, the holder of a beverage license, is subject to the disciplinary guidelines of Chapter 561, Florida Statutes.

    
    

14. Section 561.29(1), Florida Statutes, authorizes the Division of Alcoholic Beverages and Tobacco to revoke or suspend a beverage license upon a showing of:

    
    

    1. A violation by the licensee or his agents, officers, servants, or employees on the licensed premises ... of any of the laws of the state ... or permitting another on the licensed premises to violate any of the laws of this state... .

       
       

    2. Violation by the licensee, or if a corporation, by any officers thereof, of any

       laws of this state or any state or territory... .

       
       

15. Section 812.019, Florida Statutes, provides in pertinent part that:

    
    

    ... Any person who traffics in, or endeavors to traffic in, property that he knows or should know is stolen shall be guilty of a felony of the second degree... .

    
    

    That section further provides that:

    
    

    1. Proof of the purchase or sale of stolen property at a price substantially before the fair market value, unless satisfactorily explained, gives rise to an inference that

       the person buying or selling the property knew or should have known that the property had been stolen.

       
       

    2. Proof of the purchase or sale of stolen property by a dealer in property, out of the regular course of business or without the usual indicia of ownership other than mere possession, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property knew or should have known that it had been stolen. See, Thompson v. State, 480 So.2d 179, 181 (Fla. 3rd DCA 1985).

    
    

16. It is not a defense to a prosecution if Petitioner engages in any stratagem or deception, including the use of an undercover operative or law enforcement officer or that the subject property was not stolen, but was offered for sale as stolen property. Section 812.028(1-4), Florida Statutes.

    
    

17. Petitioner presented, by clear and convincing evidence, that Respondent trafficked in, or endeavored to traffic in property he knew or should have known was either stolen or was purported to be stolen on three separate occasions on his licensed premises in violation of Section 812.019, Florida Statutes. Respondent's denial that he did not purchase merchandise from the Petitioner's agents as part of the sting investigation is incredible and not worthy of belief.

    
    

18. Petitioner introduced record evidence that Respondent had previously been found in violation of Section 812.019, Florida Statutes as set forth in a notice to show cause issued October 22, 1987. Based thereon, Respondent was subsequently suspended for a period of eighty days and a $1,000.00 civil penalty was assessed. 1/

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that Respondent's Alcoholic Beverage license no. 62-03664, series 2- APS, be revoked.

RECOMMENDED this 25th day of April, 1991, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1991.

ENDNOTES

1/ Petitioner's penalty guidelines provide that a licensee's repeat violation of Section 812.019, Florida Statutes, within a fifteen year period should result in revocation of the licensee's Alcoholic Beverage license.

COPIES FURNISHED:

Eric S. Haug, Esquire Assistant General Counsel

Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007

Leslie Boyd, President Boyd's Service, Inc.

1500 22nd Street South St. Petersburg, FL 33712

Donald Conn, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000

Harry Hooper, Director

Division of Alcoholic Beverages and Tobacco

The Johns Building

725 South Bronough Street Tallahassee, FL 32399-1000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 90-005991

Orders for Case No: 90-005991