STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2064

)

JARUQUITO GROCERY, )

)

Respondent. )

)

RECOMMENDED ORDER

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 10, 1980. No appearance was made on behalf of respondent. Petitioner was represented by counsel:

APPEARANCES

For Petitioner: Dennis LaRosa, Esquire

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

For Respondent: Fredrick E. Graves, Esquire

Suite 3000, New World Tower

100 North Biscayne Boulevard Miami, Florida 33132

PROCEDURAL BACKGROUND

By notice to show cause, petitioner alleged in count two that respondent "on or about October 23, 1979," had three bottles of Coors Beer and six cans of Victoria Beer on its premises "all failing to evidence payment of Florida excise taxes ... in violation of F.S.S.562.01, F.S.S.562.02 and F.S.S. 562.15" At the final hearing, petitioner dismissed counts one and three without prejudice.

FINDINGS OF FACT

1. At all pertinent times, respondent held a 2-APS license, No. 23-2019, authorizing the grocery store to sell package goods.

   
   

2. In response to a request from the Miami Police Department, petitioner's employee, Norman David Leifer, investigated respondent's premises and discovered three bottles of Coors Beer and six cans of Victoria Cerveza all lacking Florida tax stamps. The word "Florida" was not printed or lithographed on the can lids or bottle crowns. He found the beer in sealed containers in a walk-in cooler containing meats, other alcoholic beverages and other products being offered for sale.

3. The beer Mr. Leifer found was on respondent's premises for the purpose of resale, and Florida taxes had not been paid on the beer.

   
   

   CONCLUSIONS OF LAW

   
   

4. The law requires that "all taxable malt beverages packaged in bottles or cans, possessed by any person in the state for the purpose of sale or resale in the state ... shall have printed or lithographed on the crown or can lid thereof, the word 'Florida'. . ." Section 563.06(1), Florida Statutes (1979), Bek-James, Inc. v. Nuzum, 358 So.2d 174 (Fla. 1978)), but it is "unlawful for a licensee under the Beverage Law [like respondent] to have in his possession ... in the place of business of such licensee, alcoholic beverages not authorized by law to be sold by such licensee." Section562.02, Florida Statutes (1979).

   
   

5. In these circumstances, petitioner is authorized to "impose a civil penalty ...[and if] the licensee fails to pay the civil penalty, his license shall be suspended for such period of time as the division my specify." Section 561.29(3), Florida Statutes (1979).

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner assess a civil penalty against respondent in the amount of one hundred ($100.00), or, if the fine has not been paid within one month of entry of the final order, suspend respondent's license for a period of two weeks.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 8th day of January, 1981.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Collins Building

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of Janaury, 1981.

COPIES FURNISHED:

Dennis E. LaRosa, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Frederick E. Graves, Esqurie Suite 3000, New World Tower

100 North Biscayne Boulevard Miami, Florida 33132

Jaruquito Grocery 1366 NE First Avenue Miami, Florida 33132

Docket for Case No: 80-002064

Orders for Case No: 80-002064