STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 95-6023

) 623 WASHINGTON AVENUE, INC. d/b/a ) JESSIE'S, )

)

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 May 7, 1996, in Miami, Florida.

APPEARANCES

For Petitioner: Miguel Oxamendi, Esquire

Department of Business and Professional Regulation

Division of Alcoholic Beverages and Tobacco

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: Sy Chadroff, Esquire

2700 Southwest 37th Avenue Miami, Florida 33133-2728

STATEMENT OF THE ISSUE

At issue is whether respondent committed the offenses alleged in the administrative action and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

By a two count administrative action dated November 3, 1995, petitioner charged that respondent, the holder of an alcoholic beverage license, violated the provisions of Section 561.14(3), Florida Statutes, by "purchas[ing] alcoholic beverages for the purpose of resale at the licensed premises from other than a licensed distributor or manufacturer," and the provisions of Section 561.29(l)(j), Florida Statutes, by "fail[ing] to maintain records of all monthly purchases of alcoholic beverages and to produce such records for inspection within 10 days of written request."

Respondent filed a timely request for hearing disputing the allegations set forth in the administrative action, and the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, the parties stipulated to the facts contained within findings of fact 1 through 3 which follow, and official recognition was taken of Chapter 61A, Florida Administrative Code. No witnesses or exhibits were offered.

The transcript of hearing was not ordered, and the parties waived their opportunity to submit proposed recommended orders.

FINDINGS OF FACT

1. At all times pertinent hereto, respondent, 623 Washington Avenue Corporation d/b/a Jessie's, held alcoholic beverage license number 23-00438, series 4-COP.

   
   

2. On or about July 21, 1995, respondent, through its agents and employees Ryan Fisher and Brett Vapnek, did purchase alcoholic beverages for the purpose of resale at the licensed premises from other than a licensed distributor or manufacturer.

   
   

3. On or about August 8, 1995, respondent, through its agent and employee Steven Edisis, failed to maintain records of all monthly purchases of alcoholic beverages and to produce such records for inspection within 10 days of written request therefore.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

5. At issue in this proceeding is whether respondent violated the provisions of Sections 561.14(3), and 561.29(l)(j), Florida Statutes, as alleged in the administrative action. In cases of this nature, the petitioner bears the burden of proving its charges by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987), and Slomowitz v. Walker, 492 So.2d 797 (Fla. 4th DCA 1983).

   
   

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

   
   

   (l) 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:

   * * *

   (j) Failure of any licensee issued a license under 561.20(1) to maintain records of all monthly sales and all monthly pur- chases of alcoholic beverages and to produce such records for inspection by any division employee within 10 days of written request therefor.

   * * *

   (3) The division may impose a civil penalty against a licensee for any violation mentioned in the Beverage Law . . . not to exceed $1,000 for violations arising out of a single transaction. . . .

   
   

   And, Section 561.14(3), Florida Statutes, provides:

   
   

   (3) Vendors licensed to sell alcoholic beverages at retail only. No vendor shall purchase or acquire in any manner for the purpose of resale any alcoholic beverages from any person not licensed as a vendor, manufacturer, bottler, or distributor under the Beverage Law. . . .

   
   

7. Here, consistent with the parties stipulated facts, it has been established that respondent violated the provisions of subsections 561.14(3) and 561.29(l)(j) of the Beverage Law. Consequently, it is necessary to consider petitioner's penalty guidelines, established at Rule 61A-2.022, Florida Administrative Code, to assess an appropriate penalty.

   
   

8. Under the provisions of Rule 61A-2.022(11), Florida Administrative Code, the penalty for the first violation of section 561.14(3), Florida Statutes, is a $1,000 civil penalty, and the penalty for the first violation of Section 561.29(l)(j), Florida Statutes, is revocation. Here, no proof was offered at hearing which would mitigate against the imposition of the penalty established by petitioner's guidelines.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered imposing a $1,000 civil penalty

against respondent for the violation of Section 561.14(3), Florida Statutes, and which revokes respondent's license for the violation of Section 561.21(l)(j), Florida Statues.

DONE AND ENTERED this 14th day of May 1996 in Tallahassee, Leon County, Florida.

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 14th day of May 1996.

COPIES FURNISHED:

Miguel Oxamendi, Esquire Department of Business and

Professional Regulation Division of Alcoholic Beverages

and Tobacco

1940 North Monroe Street Tallahassee, Florida 32399-1007

Sy Chadroff, Esquire

2700 Southwest 37th Avenue Miami, Florida 33133-2728

Maj. Jorge Herrera

Augusta Building, Suite 100 8685 Northwest 53rd Terrace Miami, Florida 33166

John J. Harris, Director Division of Alcoholic Beverages

and Tobacco

1940 North Monroe Street Tallahassee, Florida 32399-0792

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

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 ten 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: 95-006023

Orders for Case No: 95-006023