vs. ) CASE NO. 79-2292
Respondent. )
This matter came on for hearing in Miami, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on December 11, 1979. Nobody appeared at the hearing on behalf of respondent. Before the hearing began, however, a man telephoned, purportedly on behalf of respondent, and spoke with the Hearing Officer and counsel for petitioner who were on extension phones.
For Petitioner: Harold F.X. Purnell, Esquire
By notice to show cause, petitioner alleged that respondent "between the dates August, 1977, and July, 1979, inclusively, . . . fail[ed] to submit required monthly reports on/or before the 10th day of the month following the month for which the report was made . . . in violation of F.S. Section 210.09(2) and Florida Administrative Rule 7A-10.11;" and that respondent "between the dates of March, 1977, and December 1978, inclusively, . . . did make payment with worthless checks for [certain specified months'] tax liability . . . in violation of F.S. Section 210.05(3)(b)." At the hearing, petitioner was granted leave to amend its allegations with respect to the dates of the checks in question and, in one instance, with respect to the amount of a check, so that the notice to show cause is now deemed to allege that checks dated March 10, 1977, January 10, February 10, February 20, March 30, March 31, April 17, and November 9, 1978, were delivered to petitioner as payment on taxes but were, in fact, worthless. Petitioner was also allowed to amend the notice to show cause to allege that a check dated March 30, 1978, was in the amount of $3,187.75 rather than $3,084.75, as previously alleged. Petitioner abandoned its allegations with respect to a check alleged to have been issued on April 14, 1978, in the amount of $102.82.
As a licensed wholesale dealer in cigarettes, respondent filed monthly tax returns on forms furnished by petitioner. The return respondent filed for July of 1977, was notarized on August 10, 1977, and received by petitioner on August 16, 1977. Accompanying the return was respondent's check drawn in favor of petitioner in the amount of $11,927.69. The return for August, 1977, was notarized on September 9, 1977, and received by petitioner on September 12, 1977. Accompanying this return was respondent's check drawn in favor of petitioner in the amount of $12,995.94. The September, 1977, return was notarized on October 14, 1977, and received by petitioner, at the latest, on October 18, 1977. Accompanying this return was respondent's check drawn in favor of petitioner in the amount of $11,845.44. The return for October, 1977, was notarized on November 10, 1977, and received by respondent on November 14, 1977. Accompanying this return was respondent's check drawn in petitioner's favor in the amount of $9,891.76. The return for November, 1977, was notarized on December 10, 1977, and received by petitioner on December 13, 1977. Accompanying this return was respondent's check drawn in petitioner's favor in the amount of $10,693.80. The return for December, 1977, was notarized on January 10, 1978, and received by petitioner on January 13, 1978. Accompanying this return was respondent's check drawn in petitioner's favor in the amount of
$16,678.00. The return for January, 1978, was notarized on February 10, 1978, and received by petitioner on February 20, 1978. Accompanying this return was respondent's check drawn in petitioner's favor in the amount of $8,657.86. The return for February, 1978, was notarized on March 10, 1978, and received by petitioner on March 13, 1978. Accompanying this return was respondent's check drawn in petitioner's favor in the amount of $7,115.49. Beginning in March of 1978, respondent made tax payments whenever its Pitney-Bowes cigarette stamping meter was reset by petitioner's cashier, and payments did not accompany respondent's tax returns thereafter.
Respondent's return for March, 1978, was notarized on April 17, 1978, and received by petitioner the following day. The return for April, 1978, was notarized on May 17, 1978, and received by petitioner the same day. The return for May, 1978, was notarized on June 9, 1978, and received by petitioner on June 12, 1978. The return for June, 1978, was notarized on July 10, 1978, and received by petitioner on July 12, 1978. The August, 1978, return was notarized on September 7, 1978, and received by petitioner on September 13, 1978. The September, 1978, return was notarized on October 9, 1978, and received by petitioner on October 11, 1978. The October, 1978, return was notarized on November 7, 1978, and received by petitioner on November 21, 1978. The November, 1978, return was notarized on December 8, 1978, and received by petitioner on December 11, 1978. The December, 1978, return was notarized on January 10, 1979, and received by petitioner the following day. The January, 1979, return was notarized on February 10, 1979, and received by petitioner on February 13, 1979. The February, 1979, return was notarized on March 10, 1979, and received by petitioner on March 20, 1979. The March, 1979, return was notarized on April 10, 1979, and received by Petitioner the following day. The April, 1979, return was notarized on May 10, 1979, and received by petitioner on May 16, 1979. The May, 1979, return was notarized on June 14, 1979, and received by petitioner the following day. The June, 1979, return was notarized on July 24, 1979, and received by petitioner on August 2, 1979.
Respondent's check No. 1843, dated March 10, 1977, drawn in petitioner's favor, in the amount of $11,264.20, was dishonored by the drawee for insufficient funds. Respondent's check No. 1833, dated January 10, 1978, drawn in petitioner's favor in the amount of $16,678.20, was dishonored by the
drawee for insufficient funds. Respondent's check No. 1259, dated March 30, 1978, drawn in petitioner's favor, in the amount of $3,187.57, was dishonored by the drawee for insufficient funds. Respondent's check No. 1260, dated March 31, 1978, drawn in petitioner's favor in the amount of $105.00 was dishonored by the drawee for insufficient funds. Respondent's check No. 1203, dated February 20, 1978, drawn in petitioner's favor, in the amount of $2,591.19, was dishonored by the drawee for insufficient funds. Respondent's check No. 1261, dated April 17, 1978, drawn in petitioner's favor, in the amount of $2,159.32, was dishonored by the drawee for insufficient funds. Respondent's check No. 1997, dated November 9, 1978, drawn in petitioner's favor in the amount of $617.40, was dishonored by the drawee for the stated reason that respondent's account had been closed. In a post hearing memorandum, petitioner's counsel conceded that respondent had subsequently made all of its checks drawn in favor of petitioner good.
CONCLUSIONS OF LAW
By duly promulgated administrative rule, wholesale cigarette dealers like respondent are required "[o]n or before the tenth day of each month, . . . [to] report to the Division, on forms prescribed for that purpose, all . . . purchases and sales of cigarettes for the preceding month." Rule 7A-10.11, Florida Administrative Code. This rule implements the statutory requirement that "reports . . . be made on or before the tenth day of the month following the month for which the report is made, unless the division by rule or regulation shall prescribe that reports be made more often." Section 210.09(2), Florida Statutes (1977). Petitioner established that respondent violated the requirements of Section 219.09, Florida Statutes (1977), and of Rule 7A-10.11, Florida Administrative Code.
Petitioner has "full power and authority upon sufficient cause appearing of the violation of any of the provisions of [Chapter 210, Florida Statutes] by any wholesale . . . dealer . . . to revoke the permit of such wholesale dealer."
It was not clear from the evidence whether, in or about March of 1978, petitioner placed respondent on a cash basis on account of some default, as authorized by Section 210.05(3)(b), Florida Statutes (1977), or whether respondent elected to operate on a cash basis at that time, rather than renew the bond that would otherwise have been required. The evidence did show, however, that respondent had written petitioner bad checks in March of 1977, and on January 10 and March 30, 1978.
That Petitioner revoke Respondent's permit as a wholesale cigarette dealer.
DONE and ENTERED this 31st day of December, 1979, in Tallahassee, Florida.
ROBERT T. BENTON, II
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
Harold F.X. Purnell, Esquire General Counsel
Gray Tobacco Company, Inc. 8109 N.W. 33rd Street Miami, Florida
