STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 92-4069

)

EDWARD ANDRE JONES, d/b/a )

B & D FOOD MARKET, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Melbourne, Florida on December 2, 1992, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Miguel Oxamendi, Esquire

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

For the Respondent: Lane Vaughn, Esquire

2007 South Melbourne Court Melbourne, Florida 32901

STATEMENT OF THE ISSUES

The issue for consideration in this matter is whether the Respondent's 1 APS license 15-00386 should be disciplined because of the matters alleged in the Notice to Show Cause filed herein.

PRELIMINARY MATTERS

By Notice to Show Cause dated October 16, 1991, the Division of Alcoholic Beverages and Tobacco, (Division), for the Department of Business Regulation, (Department), notified Respondent it intended to discipline his alcoholic beverage license, as identified above, because, it alleged, on August 27, 1991 he possessed, on his licensed premises, two cartons of cigarettes that were not purchased from a wholesale dealer, and alcoholic beverages not authorized by law to be sold under the license, in violation of Sections 210.15(1)(h), and 562.02, Florida Statutes, respectively. On November 18, 1991, Respondent requested a formal hearing on the allegations, and by letter dated July 6, 1992, the matter was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer.

By Notice of Hearing dated July 29, 1992, entered after the parties' response to the Initial Order entered herein, Hearing Officer Joyous D. Parrish set the matter for hearing in Melbourne on October 9, 1992. However, after two continuances requested by the Petitioner were granted, the matter was ultimately heard by the undersigned on December 2, 1992.

At the hearing, Counsel for Respondent indicated he had not received a copy of the latest order setting the hearing and was, therefore, unable to contact his client. Counsel for Petitioner indicated he had also verbally notified counsel of the scheduled hearing date, but Respondent was not present at the hearing. The undersigned therefore directed Petitioner to present his evidence and advised Respondent's counsel he could, within 14 days of this hearing, arrange with counsel for the Petitioner for Respondent to present his testimony to the undersigned at a telephone hearing held for that purpose. Both counsel agreed. No such testimony was presented.

Petitioner presented the testimony of Sergeant Michael Fath, supervisor of the Division's Brevard County office; and Thomas H. Wylie and Elizabeth Felton, both Special Agents with the Division, and introduced Petitioner's Exhibits 1 through 5. No evidence was presented on behalf of the Respondent.

No transcript was provided and neither counsel submitted Proposed Findings of Fact.

FINDINGS OF FACT

1. At all times pertinent to the allegations in issue here, the Division was the state agency responsible for the licensing of the sale of alcohol and alcoholic beverages in Florida. Respondent operated the S & D Food Market at

   531 Blake Avenue, Cocoa.

   
   

2. On August 27, 1991, SA Wylie, a member of the Division's Orlando office, was, along with several other Special Agents, including SA Felton, assisting the Florida Department of Law Enforcement to serve search warrants and search covered premises, including that of the Respondent. When he arrived at the Respondent's facility he asked the clerk on duty to show him the alcoholic beverage license for the store and determined it permitted only the sale of packaged beer for off-premises consumption. He conducted an inspection of the store to insure only beer was being sold in compliance with the license and discovered several bottles of wine in the cooler along with wine cooler and beer. These items were in the display section open to the public.

   
   

3. Mr. Wylie went around back into the cooler and found more wine, and when he went into the store's back storage room, found cases of wine stacked up against the wall. When he saw this, he went back to the clerk and asked why wine was being sold when the license permitted only the sale of beer. The clerk claimed to know nothing about it. Wylie asked for the invoices for the wine purchases and the clerk went to get them. While waiting in the office, Mr. Wylie also saw several cartons of cigarettes which showed a Publix stamp on the end. The presence of these stamps on the cartons indicated to him that the cigarettes had been purchased at Publix and not from a wholesale distributor.

   He assumed the cigarettes were for resale, though all other cigarettes in the store were in the display rack out front. These cigarettes were legal.

   
   

4. When the clerk came back with the invoices, Wylie also asked him for the purchase receipt for the cigarettes and the clerk went to get that, too. In

   the meantime, SA Felton arrived on the scene and Wylie turned over all the wine and the cartons of cigarettes to her.

   
   

5. Felton inventoried the wine and determined there were in excess of 76 full cases of wine in addition to numerous loose bottles.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings. Section 120.57(1), Florida Statute.

   
   

7. Section 562.02, Florida Statutes, provides:

   
   

   It is unlawful for a licensee under the Beverage Law or his agent to have in his possession, ..., at or in the place of business of such licensee, alcoholic beverages not authorized by law to be sold by such licensee.

   
   

8. The uncontroverted evidence of record clearly establishes that at the time alleged in the Notice to Show Cause, the Respondent, Edward Andre Jones, had stored in his place of business, in excess of 76 full cases of wine, in addition to numerous loose bottles of wine, which were not authorized by law to be sold there. This constitutes a clear violation of the statute.

   
   

9. Section 210.15(1)(h), Florida Statutes, provides:

   
   

   ... 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.

   
   

10. Here the evidence of record shows only that there were found, in the Respondent's office at his place of business, two cartons of cigarettes which were shown to have been purchased at a Publix supermarket. These cigarettes were not being offered for resale at retail on the Respondent's licensed premises, and the evidence also shows that all cigarettes that were being offered for resale were properly and legally purchased and offered. The evidence also shows that Publix is a licensed wholesale dealer of cigarettes but only to its own stores. The statutes does not specify, however, that the wholesale dealer must sell to anyone.

    
    

11. In order to successfully prosecute the Respondent for a violation of a Rule or statute, the Petitioner must prove his guilt of the offense alleged by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). In this case, the evidence of Respondent's guilt of possession the unauthorized alcoholic beverage was both clear and convincing. However, the evidence is neither clear or convincing as it pertains to the alleged cigarette violation and that allegation must be dismissed.

12. Under the provisions of Section 560.131(2), Florida Statutes, the Department may discipline the license of a licensee for stipulated violations of the state's Beverage Law. The possession of unauthorized alcoholic beverages supports such action.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered in this case dismissing the allegation that Respondent, Edward Andre Jones, possessed cigarettes not purchased from a wholesale dealer, but finging him Guilty of the allegation of possessing unauthorized alcoholic beverages on the premises covered by 1 APS license 15- 00386; placing his license on probation for one year, and assessing an administrative fine of $1,000.00.

RECOMMENDED in Tallahassee, Florida this 27th day of January, 1993.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1993.

COPIES FURNISHED:

Miguel Oxamendi, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

Lane Vaughn, Esquire

2007 South Melbourne Court Melbourne, Florida 32901

Janet E. Ferris Secretary

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

Donald D. Conn General Counsel

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

Richard W. Scully Director

Division of Alcoholic Beverages and Tobacco

725 South Bronough Street Tallahassee, Florida 32399-1007

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. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 92-004069

Orders for Case No: 92-004069