STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 92-4958

)

AHMAD ENTERPRISES, INC., )

d/b/a LUCILLES MARKET, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on December 3, 1992, in Miami, Florida.

APPEARANCES

For Petitioner: Thomas A. Klein, Esquire

Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1007

For Respondent: Ibrahim Ghantous, Esquire

190 Minorca Avenue

Coral Gables, Florida 33134 STATEMENT OF THE ISSUES

At issue in this proceeding is whether respondent committed the offenses set forth in the notice to show cause and, if so, what disciplinary action should be imposed.

PRELIMINARY STATEMENT

By a two count notice to show cause dated May 11, 1992, petitioner charged that respondent, the holder of an alcoholic beverage license, did, on January 13 and 21, 1992, "illegally traffic in and fraudulently possess U.S.D.A. Food Coupons, in a manner not authorized by federal law, contrary to Section 561.29, F.S., and Title 7, Section 2024(b)(1), U.S.C."

At hearing, petitioner called as witnesses: Dennis Lyle Wilson, Carol Bennet, and Mbadike Samuel Owhochukwu. Petitioner's exhibits 1-4 were received into evidence. Respondent called no witnesses and offered no exhibits.

The transcript of hearing was not ordered so the parties were granted 10 days from the date of hearing to file proposed findings of fact. Petitioner elected to file such proposals, and they are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. At all times material hereto, respondent, Ahmad Enterprises, Inc., held alcoholic beverage license number 23-10516, series 2-APS, for the premises known as Lucilles Market (the "premises"), located at 9300 N.W. 17th Avenue, Miami, Dade County, Florida. Ibrahim M. Ahmad is the respondent's sole corporate officer.

   
   

2. In January 1992, Detective Hladky of the Metro-Dade Police Department and U.S.D.A. Special Agent Carol Bennett began an undercover investigation of the premises. Such investigation was predicated on information Special Agent Bennett had received from a confidential informant (CI) which indicated that persons associated with Lucilles Market were purchasing U.S.D.A. Food Coupons for cash and at less than their face value.

   
   

3. On January 13, 1992, Special Agent Bennett gave the CI four U.S.D.A. Food Coupon Books, having an aggregate face value of $245.00, for the purpose of attempting to sell such books to persons inside the licensed premises. The CI then entered the licensed premises, met with Ibrahim M. Ahmad, and sold him the four coupon books for the $125.00 Mr. Ahmad offered. Pertinent to Mr. Ahmad's knowledge of the impropriety of his conduct, it is observed that on this occasion Mr. Ahmad inquired of the CI as to whether or not he worked for the police department before he would consummate the transaction.

   
   

4. On January 21, 1992, Special Agent Bennett gave the CI six U.S.D.A. Food Coupon Books, having an aggregate face value of $360.00, for the purpose of attempting to sell such books to persons inside the licensed premises. When the CI entered the licensed premises, he again met with Mr. Ahmad, and sold him the six coupon books for the $200.00 Mr. Ahmad offered.

   
   

5. Special Agent Bennett recovered 100 percent of the food coupons, which were clearly marked "non-transferable," through the Federal Reserve Bank. Each coupon involved in the aforesaid transaction had been deposited to the account of Ahmad Enterprises, Inc., at America First Bank, Miami, Florida, which reflects that respondent was reimbursed the full face value of the coupons by

   U.S.D.A. 1/

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. At issue in these proceedings is whether the conduct of respondent's agents, servants or employees violated the provisions of Section 561.29, Florida Statutes. In cases of this nature, the petitioner bears the burden of proving its charges by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

8. Pertinent to this case, Section 561.29, Florida Statutes, provides:

   
   

   1. The division is given full power and authority to revoke or suspend the license of any person holding a license under the Beverage Law, when it is determined or found by the division upon sufficient cause appearing of:

      1. Violation by the licensee or his or its agents, officers, servants, or employees, on the licensed premises . . . of any of the laws of this state or of the United States.

         
         

9. Here, petitioner charged that respondent violated the provisions of Title 7, U.S.C., Section 2024(b)(1), and therefore Section 561.29(1)(a), Florida Statutes. Title 7, U.S.C., Section 2024(b)(1) provides that it is a violation of Federal Law to knowingly use, transfer, acquire, alter or possess food coupons contrary to the provisions of such chapter. Accordingly, to demonstrate a violation of Title 7, U.S.C., Section 2024(b)(1), it was incumbent upon petitioner to demonstrate not only purchase or possession, but that respondent's agent or officer knew that purchase or possession of food stamps was in a manner unauthorized by law. Liparota v. United States, 471 U.S. 419, 85 L.Ed. 2d 434,

   105 S.Ct. 2084 (1985). Such knowledge may be demonstrated, as in any other case requiring mens rea, by reference to the facts and circumstances surrounding the case. Liparota v. United States, supra.

   
   

10. In this case, the proof supports the conclusion that Mr. Ahmad, respondent's sole corporate officer, knew that his purchase and possession of the food coupon books he purchased on January 13 and 21, 1992, was contrary to law. Such conclusion is supported by the fact that each food coupon was clearly marked "non-transferable," that Mr. Ahmad purchased a substantial number of coupon books at almost a 50 percent discount from their face value for cash, and that Mr. Ahmad sought assurance from the CI that he was not a police officer before he would consummate his first purchase. Accordingly, petitioner has demonstrated by clear and convincing evidence that respondent violated the provisions of Title 7, U.S.C., Section 2024(b)(1), and therefore Section 561.29(1)(a), Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered revoking respondent's alcoholic

beverage license.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of December 1992.

WILLIAM J. KENDRICK

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 22nd day of December 1992.

ENDNOTES

1/ Each of the food coupons from the January 13, 1992, and January 21, 1992, transactions except one one dollar coupon in the January 13, 1992 transaction, were stamped "For Deposit Only" to the account of Ahmad Enterprises, Inc. While the one one dollar coupon was not so stamped, such was an apparent oversight by the bank, since all the coupons in the January 13, 1992 transaction reflect that they were paid by the bank on January 14, 1992. Accordingly, it is reasonable to infer that respondent was also paid for the one one dollar coupon on that date. Accounting for the ultimate disposition of that one one dollar coupon is not, however, significant to the ultimate resolution of this case.

APPENDIX

1. Addressed in paragraph 1.

2. Addressed in paragraphs 2, 3 and 4.

3. Addressed in paragraph 1.

4-6. Addressed in paragraphs 2, 3 and 4, otherwise rejected as subordinate.

1. Rejected as not relevant, as it was not charged in the administrative complaint.

2. Addressed in paragraph 5.

COPIES FURNISHED:

Thomas A. Klein, Esquire Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1007

Ibrahim Ghantous, Esquire

190 Minorca Avenue

Coral Gables, Florida 33134

Donald D. Conn General Counsel

Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1007

Richard W. Scully, Director Department of Business Regulation The Johns Building

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 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: 92-004958

Orders for Case No: 92-004958