STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, )

DEPARTMENT OF BUSINESS, ) REGULATION, DIVISION OF BEVERAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1737

) SEMINOLE DISTRIBUTORS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held in Room 216, Johns Building, Tallahassee, Florida, at 8:30 A.M. on October 23 1975, before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles Tunnicliff, Esquire

Johns Building

725 South Bronough Street Tallahassee, Florida

For Respondent: J. Klein Wigginton, Esquire

504 East Jefferson Street Tallahassee, Florida

ISSUE

The issues in this cause are whether respondent is guilty of violating F.S.

561.42(1) in that it did assist four retail vendors by giving gifts and/or guilty of violating F.A.C. Rule 7A-4.45 in that it failed to reflect on four invoices the complete addresses of four vendors and their signatures, and if so, whether a civil penalty should be assessed against respondent's license or such license should be suspended or revoked, pursuant to F.S. S. 561.29.

FINDINGS OF FACT

Having considered the testimony and evidence presented at the hearing, the following findings of fact are made:

1. On or about June 1, 1975, Mr. George C. Gould went to respondent's place of business and obtained six to eight boxes containing 12,000 to 15,000 invoices. Four of these invoices form the basis for the present charges against respondent.

   
   

   1. Invoice No. 5327, dated January 23, 1975, contains the information, inter alia, that items were sold to "Magic Market number 139, Apal

      Pkway," License Number 47-164, and also that one bottle of Boones Farm Strawberry Wine was delivered as a promotional item at no charge.

      
      

   2. Invoice No. 5331, dated January 23, 1974, is for "Inland Quick Stop, Hwy 20 and Cap. Circle", License No. 47-175, and indicates that one bottle of Boones Farm Strawberry Wine was delivered at no charge as a promotional item.

      
      

   3. Invoice No. 5332, dated January 23, 1974, is for "Tempo, W. Tenn. St." License No. 47-17, and indicates that one bottle of Boones Farm Strawberry Wine was delivered as a promotional item at no charge.

      
      

   4. Invoice No. 6512, dated February 6, 1974, is for "Subway, W. Tenn. St.", License No. 47-145, and indicates that one bottle of Rhine was delivered as a sample at no charge.

      
      

      None of the above invoices contained the signature of the vendors.

      
      

2. Mr. Monty Myers, President of respondent, acknowledged that technical breaches occurred when the bottles of wine were given to the vendors above listed. In mitigation, Mr. Myers stated that the giving of promotional gifts had been going on for some time, especially with the beer distributors. In May of 1975, Mr. Myers, other distributors and five persons with the Division of Beverage had a meeting. At this meeting Mr. Myers acknowledged that he had in the past given promotional items to vendors. Members of the Division of Beverage informed Myers and the others that after this May meeting, charges would be brought against those who gave away promotional items or gifts. No promotional items have been given by respondent since the May meeting.

   
   

3. Myers further testified that he did not understand the extent of the address requirement, that the number 47 in the license number represents Leon County and that he would now be able to comply with the address requirements.

   
   

   CONCLUSIONS OF LAW

   
   

4. Section 561.42(1), prohibits licensed manufacturers and distributors from assisting any vendor by any gifts, loans of money or property or by the giving of rebates of any kind whatsoever. It thus appears that respondent- licensee is guilty of violating this statute in the four instances wherein bottles of wine were given to vendors without charge as promotional items.

   
   

5. Rule 7A-4.45 of the Florida Administrative Code requires wine distributors to complete a sales ticket or invoice at the time of sale and delivery. Such sales ticket or invoice must contain, inter alia, the name, address and license number of the vendor making the purchase and it must be signed by the vendor or his authorized agent at the time delivery is made. The four invoices in question do not contain the signature of the vendors, nor are the addresses of the vendors complete. It thus appears that respondent is guilty of violating the provisions of said Rule 7A-4.45.

   
   

6. F.S. s. 561.29 provides that the Division of Beverage may suspend or revoke a license where it is found that the licensee has violated any of the laws of this State or of the United States or has violated any rule promulgated by said Division. However, such penalties are harsh and should be sparingly and cautiously used and directed at the dishonest or unscrupulous. Certainly, the violations herein do not warrant the penalties of revocation or suspension.

7. F.S. s. 561.29(4) further provides that the Division of Beverage may impose a civil penalty against a licensee for a violation of the beverage law or any rule promulgated pursuant thereto. Considering the nature of the violations involved in this case and the evidence adduced at the hearing, it is the opinion of the undersigned Hearing Officer that a fine of $15.00 for each of the four offenses of giving the vendors one bottle of wine and a fine of $5.00 for each of the four incomplete invoices, making a total civil penalty of $80.00, would be appropriate.

RECOMMENDATION

Based upon the above findings of fact and conclusions of law, it is recommended that respondent be found guilty of violating F.S. s. 561.42(1) and

F.A.C. Rule 7A-4.45, and that a civil penalty in the amount of $80.00 be imposed.

Respectfully submitted and entered this 17th day of November, 1975, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Charles Tunnicliff, Esquire Johns Building

725 South Bronough Street Tallahassee, Florida

J. Klein Wigginton, Esquire

504 East Jefferson Street Tallahassee, Florida

Docket for Case No: 75-001737

Orders for Case No: 75-001737