STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 00-0302

)

UNITED BROTHERS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case by video teleconference at sites in Tallahassee and Fort Lauderdale, Florida, on June 15, 2000, before Claude B. Arrington, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: James D. Martin, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: Salaheldin Elkhalil, President

United Brothers, Inc. 7001 Northwest 20th Court Sunrise, Florida 33313

STATEMENT OF THE ISSUE

Whether Respondent illegally trafficked in or fraudulently possessed United States Department of Agriculture (U.S.D.A.) food coupons (hereinafter referred to as food coupons) in a manner not authorized by law, in violation of Title 7, Section 2024(b)(1), United States Code, as alleged in the Administrative Action filed by Petitioner against Respondent on July 2, 1999, and, if so, the penalties that should be imposed.

PRELIMINARY STATEMENT

Respondent, a corporation owned by Salaheldin Elkhalil, operates a convenience store in Fort Lauderdale, Florida. In conjunction with that business, Respondent holds a license to sell alcoholic beverages. On July 2, 1999, Petitioner filed an Administrative Action that alleged Respondent illegally possessed or trafficked in U.S.D.A. food coupons during the period December 20, 1996, and April 3, 1998, and asserted that it intended to impose authorized penalties against Respondent's license. Respondent timely requested a formal administrative hearing, the matter was referred to the Division of Administrative Hearings, and this proceeding followed.

At the final hearing, Petitioner presented the testimony of Reylius Thompson, Rene Berlingeri, Carol Bennett, and Terry Thompson. All of these witnesses participated in an undercover

investigation of Respondent's business. Petitioner offered one exhibit, which was accepted into evidence.

Mr. Elkhalil, the owner and president of Respondent, testified on behalf of Respondent. Respondent presented no other testimony and no exhibits.

No transcript of the proceedings was filed. Petitioner filed a Proposed Recommended Order, which has been duly- considered by the undersigned in the preparation of this Recommended Order. Respondent did not file a post-hearing submittal.

FINDINGS OF FACT

1. Petitioner is a licensing and regulatory agency of the State of Florida charged with the responsibility and duty to prosecute administrative complaints pursuant to the provisions of Chapter 561, Florida Statutes.

2. At all times pertinent to this proceeding, Respondent, a corporation, was the owner and holder of alcoholic beverage license number 16-12183, Series 2-APS, authorizing it to sell alcoholic beverages on its premises located at 2162 Northwest 6th Street, Fort Lauderdale, Florida (hereinafter referred to as Respondent's premises).

3. At all times pertinent to this proceeding, Salaheldin Elkhalil was the president and owner of Respondent.

4. At all times pertinent to this proceeding, Hasim Alkalil was the manger of the Respondent's premises and Nageed Ibrahim was an employee of the Respondent who worked at the subject premises.

5. On December 20, 23, and 27, 1996, Ella M. Davis, an investigative operative working under the direct supervision of Rene Berlingeri, a Senior Investigator employed by U.S.D.A., entered Respondent's premises for the purpose of conducting an undercover investigation.

6. On these dates in December, 1996, Mr. Berlingeri did not enter Respondent's premises and he could not see what was transpiring inside those premises. On each of these dates, Mr. Berlingeri gave Ms. Davis food coupons of varying value before she entered the premises and he took food items and money from her immediately after she exited the premises. On each occasion, Ms. Davis reported to Mr. Berlingeri what had transpired inside the premises, including what had happened with the food coupons and how she had come into possession of the food items and money. Ms. Davis did not testify at the formal hearing. As a result of his investigation, Mr. Berlingeri had good cause to believe that further investigation of Respondent's business was warranted.

7. Following his investigation in December, 1996, Mr.

   
   

   Berlingeri completed an investigative report, which he turned

   over to the U.S.D.A.'s Office of Inspector General, located in Memphis, Tennessee.

8. In February 1997, Carol Bennett, a special agent employed by the U.S.D.A.'s Office of Inspector General, began an investigation with the assistance of Mr. Berlingeri.

9. On November 11, 1997, Ms. Bennett directed an investigative operative to Respondent's premises. The investigative operative tried to exchange food coupons for cash with an employee, but the unidentified employee refused to participate in the transaction.

10. On January 7, 1998, Terry Thomas, an investigative operative working under the direct supervision of Ms. Bennett, entered Respondent's premises with $230.00 worth of food coupons. At that time, Mr. Ibrahim purchased from Mr. Thomas

    $230.00 in food coupons for $170.00 in cash.

    
    

11. On January 14, 1998, Mr. Thomas, working under the direct supervision of Ms. Bennett, entered Respondent's premises with $360.00 worth of food coupons. At that time, an unidentified male purchased from Mr. Thomas $360.00 in food coupons for $210.00 in cash.

12. On February 19, 1998, Mr. Thomas, working under the direct supervision of Ms. Bennett, entered Respondent's premises with $1,000.00 worth of food coupons. At that time, Mr. Alkalil

    purchased from Mr. Thomas $1,000.00 in food coupons for $500.00 in cash.

13. On March 2, 1998, Mr. Thomas, working under the direct supervision of Ms. Bennett, entered Respondent's premises with

    $1,000.00 worth of food coupons. At that time, Mr. Alkalil purchased from Mr. Thomas $1,000.00 in food coupons for $500.00 in cash.

14. On March 17, 1998, Mr. Thomas, working under the direct supervision of Ms. Bennett, entered Respondent's premises with $1,500.00 worth of food coupons. At that time, Mr. Alkalil purchased from Mr. Thomas $1,500.00 in food coupons for $750.00 in cash.

15. On April 3, 1998, Mr. Thomas, working under the direct supervision of Ms. Bennett, entered Respondent's premises with

    $1,000.00 worth of food coupons. At that time, Mr. Alkalil purchased from Mr. Thomas $1,000.00 in food coupons for $500.00 in cash.

16. Mr. Alkalil and Mr. Ibrahim were convicted of illegally trafficking in food coupons, and Respondent's authorization to accept food coupons was revoked by the U.S.D.A. Mr. Elkhalil was not arrested or charged for trafficking in food coupons.

17. Mr. Elkhalil acknowledged that Mr. Alkalil was the manager of the premises and that Mr. Ibrahim was an employee.

    Mr. Elkhalil asserted that he did not know of their wrongdoing

    
    

    while it was occurring.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction of the parties to and the subject of this proceeding. Section 120.57(1), Florida Statutes.

19. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See

    Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550

    So. 2d 112 (Fla. 1st DCA 1989); and Inquiry Concerning a Judge, 645 So. 2d 398 (Fla. 1994).

20. Section 561.29(1), Florida Statutes, provides, in pertinent part, as follows:

    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 her or its agents, officers, servants, or employees, on the licensed premises, or elsewhere while in the scope of employment, of any of the laws of this state or of the United States . . .

          
          

21. Pursuant to Title 7, Section 2013(a), United States Code, food coupons can be used only to purchase food from retail food stores which have been approved for participation in the

    food stamp program. Title 7, Section 2024(b)(1), United States Code, prohibits the unauthorized use or possession of food coupons. It is a felony offense to knowingly use, transfer, acquire, alter, or possess food coupons valued in an amount of

    $100 or more in a manner contrary to Title 7, Section 2013(a), United States Code. It is a misdemeanor offense to knowingly use, transfer, acquire, alter, or possess food coupons valued in an amount of less than $100 in a manner contrary to Title 7, Section 2013(a), United States Code.

22. Petitioner proved by clear and convincing evidence that the manager and an employee of Respondent's business, while acting in the scope of their employment, illegally trafficked in food coupons in violation of Title 7, Section 2024(b)(1), United States Code, between January 7, 1998, and April 3, 1998. Petitioner did not have to prove that Mr. Elkhalil had personal knowledge of the wrongdoing of Mr. Alkalil and Mr. Ibrahim to establish the alleged violations against Respondent. Petitioner satisfied its burden of proof by establishing that these two employees committed the offenses while working in the scope of their employment.

23. Because Mr. Berlingeri's testimony depended on hearsay statements from his investigative operative, who did not testify at the final hearing, no violations are found prior to Ms. Bennett's investigation. Additionally, no violations have been

    found on the occasions Ms. Bennett and Mr. Thomas were unable to identify the person with whom Mr. Thomas dealt.

24. There are no disciplinary guidelines pertinent to this proceeding. Because of the repeated violations and the sums involved, it is recommended that Respondent's license be

revoked.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the findings of fact and conclusions of law contained herein. It is further RECOMMENDED that the final order revoke Respondent's alcoholic beverage license number 16-12183, Series 2-APS.

DONE AND ENTERED this 11th day of July, 2000, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 2000.

COPIES FURNISHED:

James D. Martin, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Salaheldin Elkhalil, President United Brothers, Inc.

7001 Northwest 20th Court Sunrise, Florida 33313

Captain Allen F. Nash

Division of Alcoholic Beverages and Tobacco, District 9

Department of Business and Professional Regulation

5080 Coconut Creek Parkway, Suite C Margate, Florida 33063

Joseph Martelli, Director Division of Alcoholic Beverages

and Tobacco

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Barbara D. Auger, 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: 00-000302

Orders for Case No: 00-000302