STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, )

DIVISION OF )

ALCOHOLIC BEVERAGES, )

)

Petitioner, )

)

vs. ) CASE NO. 79-578

) (DABT NO. 27011-A)

BRIAN H. STICKLAND t/a ) SMOKE RISE VENDING SERVICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, at 9:30 a.m., April 10, 1979. The location of that hearing was Room 514, Richard P. Daniel Building, 111 East Coast Line Drive, Jacksonville, Florida.

APPEARANCES

For Petitioner: Francis Bayley, Esquire, Staff Attorney

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Brian H. Strickland

Smoke Rise Vending Service 8454 Royalwood Drive Jacksonville, Florida

ISSUES

1. Whether or not on or about August 10, 1978, the Respondent, Brian H. Strickland, a wholesale dealer, handling, transporting or possessing cigarettes for sale or distribution within the State, failed to file with the Division of Alcoholic Beverages and Tobacco all reports on or before the tenth day of the month, contrary to Subsection 210.09(2), Florida Statutes.

   
   

2. Whether or not on or about September 10, 1978, the Respondent, Brian H. Strickland, a wholesale dealer, handling, transporting or possessing cigarettes for sale or distribution within the State, failed to file with the Division of Alcoholic Beverages and Tobacco all reports on or before the tenth day of the month, contrary to Subsection 210.09(2), Florida Statutes.

   
   

3. Whether or not on or about October 10, 1978, the Respondent, Brian H. Strickland, a wholesale dealer, handling, transporting or possessing cigarettes for sale or distribution within the State, failed to file with the Division of

Alcoholic Beverages and Tobacco all reports on or before the tenth day of the month, contrary to Subsection 210.09(2), Florida Statutes.

FINDINGS OF FACT

1. This cause comes on for consideration based upon a Notice to Show Cause filed by the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, against Brian H. Strickland, who trades as Smoke Rise Vending Service, located at 8454 Royalwood Drive, Jacksonville, Florida. The purpose of the Notice to Show Cause was for taking action against the permit No. 26-128 CWD, issued to the Respondent, Brian H. Strickland, as permittee, by the State of Florida, Division of Alcoholic Beverages and Tobacco. The allegations contained in the Notice to Show Cause are these allegations as set forth in the issue statement of this Recommended Order.

   
   

2. At the beginning of the hearing, the parties, by an oral stipulation, agreed that the Respondent, Brian H. Strickland, no longer held the permit No. 26-128 CWD after October 31, 1978. In view of this fact, the threshold question arises concerning the jurisdiction of the Petitioner to take further action against the Respondent, Brian H. Strickland, when in fact this Respondent no longer holds a permit issued by the Petitioner.

   
   

3. Section 210.16, Florida Statutes, establishes the right of the Petitioner to take disciplinary action against permitees. The language of that provision states:

   
   

   "210.16 Revocation or suspension of permit.--

   1. The Division of Alcoholic Beverages and Tobacco is given full power and authority upon sufficient cause appearing of the violation of any of the provisions of this chapter by any wholesale dealer receiving a permit to engage in business under this chapter to revoke the permit of such wholesale dealer.

      
      

   2. The division may suspend for a reasonable period of time, in its discretion, the permits of wholesale dealers issued under the provisions of this chapter for the same causes and under the same limitations as is authorized hereunder to revoke the permits of such wholesale dealers.

      
      

   3. No wholesale dealer whose permit for

      any place of business has been revoked shall engage in business under this chapter at such place of business after such revocation until a new permit is issued to him. No wholesale dealer whose permit for any place of business has been revoked shall be permitted to have said permit renewed, or to obtain an additional cigarette permit for any other place of busi- ness, for a period of 6 months after the date such revocation becomes final.

      
      

   4. In lieu of the suspension or revocation

      of permits, the Division of Alcoholic Beverages and Tobacco may impose civil penalties against

      holders of permits for violations of this chap- ter or rules or regulations relating thereto.

      No civil penalty so imposed shall exceed $1,000 for each offense, and all amounts collected shall be deposited with the State Treasurer to the credit of the General Revenue Fund. If the holder of the permit fails to pay the civil penalty, his permit shall be suspended for such period of tins as the division may specify.

      
      

      An analysis of these provisions leads to the conclusion that the Petitioner may not take action against a Respondent, unless that Respondent is currently the "holder" of a permit. Therefore, in view of the fact that Strickland's permit has not been effective since October 31, 1978, the Petitioner has no right to seek further action against the permit either in the form of revocation, suspension or fine.

      
      

      CONCLUSIONS OF LAW

      
      

4. In consideration of the facts of this case, it is concluded as a matter of law that Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, does not have jurisdiction to proceed against the Respondent, Brian H. Strickland, t/a Smoke Rise Vending Service, because Respondent is not a "holder" of a valid permit within the meaning of Section 210.16, Florida Statutes. Consequently, no administrative penalty may be imposed against the Respondent, as contemplated by Section 210.16, Florida Statutes.

RECOMMENDATION

It is recommended that the case reported as Division of Alcoholic Beverages and Tobacco, No. 27011-A, which has been filed against the Respondent, Brian H. Strickland, t/a Smoke Rise Vending Service, be DISMISSED.

DONE AND ENTERED this 13th day of April, 1979, in Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building

530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675

COPIES FURNISHED:

Francis Bayley, Esquire Staff Attorney

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Brian H. Strickland t/a Smoke Rise Vending Service 8454 Royalwood Drive Jacksonville, Florida

J. M. Ogonowski

Richard P. Daniel State Building, Suite 514

111 East Coast Line Drive Jacksonville, Florida

Docket for Case No: 79-000578

Orders for Case No: 79-000578