STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 97-1472

) SUAMY CORPORATION, d/b/a BRISTOL ) SUNDRIES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on January 13, 1998, in Miami, Florida.

APPEARANCES

For Petitioner: Miguel Oxamendi, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: Milagros Suarez, President

Suamy Corporation, d/b/a Bristol Sundries 1001 Northwest 17th Court

Miami, Florida 33125 STATEMENT OF THE ISSUES

At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Action and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On February 14, 1997, Petitioner issued a one-count Administrative Action whereby it alleged that Respondent, the holder of an alcoholic beverage license, violated the provisions of Section 562.02, Florida Statutes, when its "agent, employee, or servant . . . possessed or permitted to be possessed at or in your licensed premises, alcoholic beverages not authorized by law to be sold by you. "

Respondent filed a request which disputed the facts alleged in the Administrative Action, and the matter was referred to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct a formal hearing pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

At hearing, Petitioner called Kelvin Davis and

Leonard DelMonte as witnesses, and its Exhibits 1 (the written detail of seized evidence) and 2 (19 bottles of seized spirits marked Exhibits 2-1 through 2-19) were received into evidence.1 Respondent called Milagros Suarez as a witness, but offered no further exhibits.

The transcript of the hearing was not ordered. Therefore, it was announced on the record that the parties were accorded ten days from the date of hearing to file proposed recommended orders or other post-hearing submittals. Petitioner elected to file such a proposal, and it has been duly considered.

FINDINGS OF FACT

1. At all times material hereto, Respondent, Suamy Corporation, held license number 23-21872, series 2APS, authorizing it to operate a beer and wine package store (the sale of beer and wine for off-premises consumption) at the premises of a business known as Bristol Sundries, located at 2127 Brickell Avenue, Miami, Florida (hereinafter "the licensed premises").2 Milagros Suarez was the sole shareholder, as well as the sole corporate officer, of the Respondent corporation.

2. On February 11, 1997, Leonard DelMonte, a special agent with the Division of Alcoholic Beverages and Tobacco, undertook an inspection of the licensed premises. Upon entry into the premises, the agent observed shelves on his left that contained bottles of liquor on display, and behind the counter he observed more shelving, which contained more bottles of liquor on display, together with bottles of wine. A cash register was observed on the counter, and an employee was present to attend the needs of customers.

3. The agent inspected, inventoried, and seized 19 bottles of distilled spirits (Petitioner's Exhibits 2-1 through 2-19) on the licensed premises. (Petitioner's Exhibit 1). The bottles were all sealed; labeled as distilled spirits, such as rum, scotch, gin, and vodka; and carried the name, trademark, or insignia of commonly known manufacturers of distilled spirits,

   such as Johnny Walker, Cuervo, Pinch, and Bombay. The bottles also had affixed to them price stickers, of the same type affixed to the wine that was offered for sale, and contained prices that were consistent with the retail price of the product. Given the facts, it is apparent that Respondent was offering the distilled spirits for sale on the licensed premises.3

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes (1997).

5. Where, as here, the agency proposes to take punitive action against a licensee, it must establish the grounds for disciplinary action by clear and convincing evidence. Section 120.57(1)(h), Florida Statutes (1997), and Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

6. Pertinent to this case, Section 561.29(1), Florida Statutes, provides that the Division of Alcoholic Beverages and Tobacco is given full power and authority to revoke or suspend a beverage license under the Beverage Law when it is determined

   that, inter alia, the licensee or his or its agents, officers, servants, or employees, on the licensed premises or elsewhere in the scope of employment violated any of the laws of this state or of the United States.

7. Section 562.02, Florida Statutes, proscribes the following conduct:

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

   
   

8. Here, the facts demonstrate with the requisite degree of certainty that Respondent violated the provisions of section

   562.02 and, therefore, subsection 561.29(1), by possessing, on the licensed premises, alcoholic beverages not authorized by law to be sold by it.

9. Having reached the foregoing conclusion, it remains to resolve the appropriate penalty that should be imposed. Pertinent to this issue, Rule 61A-2.022(11), Florida Administrative Code, provides, for a first violation of section

   562.02, the imposition of a $1,000 civil penalty. Also pertinent to this issue, Rule 61A-2.022(7), Florida Administrative Code, provides that:

   All civil penalties may be substituted with license or permit suspensions using the ratio of 1 day for each $50; for example, a licensee could offer a 5-day license suspension instead of a $250 civil

   penalty. . . .

10. Here, given that Respondent's principal knew it was unlawful to possess the distilled spirits on the premises, and that the spirits were offered for sale, the penalty of $1,000 provided by the agency's penalty guideline is appropriate, subject to Respondent's option to substitute a suspension, as provided in Rule 61A-2.022(7), Florida Administrative Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order be entered finding Respondent guilty of the charge set forth in the Administrative Action and imposing a civil penalty of $1,000 for such violation, subject to Respondent's option to substitute a period of suspension in lieu of all or a portion of the civil penalty.

DONE AND ENTERED this 27th day of January, 1998, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1998.

ENDNOTES

1/ Petitioner's Exhibits 2-1 through 2-19 (the 19 bottles of distilled spirits) were, following hearing, entrusted to Petitioner's care and custody.

2/ Respondent has been licensed since October 30, 1996.

3/ While the agent was on the licensed premises, Milagros Suarez, Respondent's owner and sole officer, was summoned to the premises. Upon inquiry, she conceded she knew it was unlawful to have the distilled spirits on the premises.

COPIES FURNISHED:

Miguel Oxamendi, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Milagros Suarez, President Suamy Corporation d/b/a

Bristol Sundries

1001 Northwest 17th Court Miami, Florida 33125

Major Jorge R. Herrera

8685 Northwest 53rd Terrace Suite 100

Miami, Florida 33166

Richard Boyd, 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 within 15 days from the date of 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: 97-001472

Orders for Case No: 97-001472