STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) BUSINESS REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 76-2109

) DABT NO. 6-76-140A MANHATTAN LIQUORS, INC., t/a )

MANHATTAN LIQUORS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings at 5600 Mariner Street, Suite 102, Tampa, Florida at 9:00 A.M., November 16, 1977.

APPEARANCES

For Petitioner: William Hatch, Esquire

725 South Bronough Street Tallahassee, Florida 32304

For Respondent: Joseph G. Spicola, Jr., Esquire

Spicola and Larkin, P.A. 806 Jackson Street

Tampa, Florida 33602 ISSUE

Whether or not on or about September 14, 1976, investigation revealed you, Leo J. Matassini, licensed under the beverage laws as a corporate officer of a licensed corporation, did fail to maintain the qualifications for such position following your conviction in Federal District Court for sale of cocaine hydrochloride in violation of Section 841(A)(1), Title 21, U.S. Code and Florida Statute 561.29.

FINDINGS OF FACT

1. The evidential facts in this cause are presented by a joint stiulation between the parties. That stipulation is made a part of the record herein. The exhibits referenced as being attached to the stipulation are not actually attached, but are available for review in the Petitioner's file, by agreement of the parties. The following is a recitation of the stipulation.

STIPULATION

COMES NOW the Petitioner, Division of Beverage, State of Florida, and Respondent, Manhattan Liquors, Inc., holder of license permit number 39-1086 4COP, by and through their respective attorneys and thereby stipulate and agree to the following facts to be submitted to Charles C. Adams, Hearing Officer, Division of Administrative Hearings for his determination in Case Number 6-76- 140A, which are as follows:

1. Respondent was heretofore served with a Notice to Show Cause which states as follows:

   
   

   'On or about September 14, 1976, investigation revealed you, LEO J. MATASSINI, licensed

   under the beverage laws as a corporate officer of a licensee corporation, did fail to maintain the qualifications for such position following your conviction in Federal District Court for sale of cocaine hydrochloride in violation

   of Section 841(A)(1), Title 21, U.S. Code and Florida Statute 561.29.'

   
   

2. Leo Matassini was arrested on April 5, 1976, and charged for violation of Section 841(A)(1), Title 21, U.S. Code.

   
   

3. Leo Matassini resigned as an officer and director of Respondent on April 12, 1976, Exhibit "A" attached:

   
   

4. Said resignation was acted upon and accepted by Respondent at a Special Combined Meeting of Stockholders and Directors on April 4, 1976 Exhibit "B" attached.

   
   

5. That on said date, April 14, 1976, Leo Matassini was replaced by Mary

   B. Fernandez. Exhibit "B" attached.

   
   

6. That the Beverage Department was notified of such resignation and change of an officer and director and said notice was received by Beverage Department on June 2, 1976. Exhibit "C" attached.

   
   

7. That Leo Matassini plead guilty and was adjudicated on August 13, 1976. Exhibit "D" attached.

   
   

8. That the facts supporting said charges, Title 21, Section 841(A)(1), did not take place on or around the premises of Respondent."

   
   

9. The legal question posed by these facts, is whether the violation of the United States Code by the former corporate officer of the Respondent, to wit: Leo Matassini, who was replaced by Mary B. Fernandez as a corporate officer; prior to Leo Matassini's conviction in Federal District Court, would prohibit any action against the licensee under the authority set forth in s. 561.29(1)(b), F.S. The answer is no, because the facts in the case for which Leo Matassini was convicted in Federal District Court took place before the replacement of the convicted corporate officer and his intervening removal before the actual conviction did not prohibit the possibility of the Petitioner taking action against the licensee. It is the violation date and not the conviction date that establishes the right to proceed. Therefore, the licensee is subject to the penalties found in s. 561.29(1)(b), F.S.

10. The fact that a violation took place off the licensed premises is not significant either, because that category of violation is not exempt from consideration under the language of s. 561.29(1)(b), F.S.

    
    

11. Finally, by the Respondent's memorandum in opposition to the proposed action by the Petitioner, it tries to claim that the conviction of Leo Matassini and the term violation as used in s. 561.29(1)(b), F.S., are synonymous. This argument is untenable for the reason found in the language of s. 561.29(1), F.S., which states:

    
    

    "Whether or not the licensee, his or its officers, agents, or employees, have been convicted in any criminal court of such violations shall not be considered in proceedings before the Division of Beverage for suspension or revocation of license."

    
    

    This language demonstrates that it is the facts of the violation and not the conviction, which are punishable, and in this instance the actionable facts arose when Leo Matassini was still serving as a corporate officer. Therefore, the licensee is answerable for Leo Matassini's violations.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction in this cause.

    
    

13. For the violation of Section 841(A)(1), Title 21, U.S. Code, involving the sale of cocaine hydrochloride, committed by Leo Matassini, a corporate officer of the licensee, the Respondent has violated s. 561.29, F.S.

RECOMMENDATION

It is recommended that the license held by the Respondent, Manhattan Liquors, Inc., t/a Manhattan Liquors, license no. 39-1086, series 4-COP, be revoked.

DONE AND ENTERED this 28th day of December, 1977, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

William Hatch, Esquire 725 South Bronough Street

Tallahassee, Florida 32304

Joseph G. Spicola, Jr., Esquire Spicola and Larkin, P.A.

806 Jackson Street

Tampa, Florida 33602

Docket for Case No: 76-002109

Orders for Case No: 76-002109