STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1823

) FORREST AND CHARLES JOSEPH, ) t/a C. JOSEPH GROCERY (35401-A), )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Jacksonville, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R.

1. Carpenter, on March 9, 1982. The parties were represented by:

   
   

   APPEARANCES

   
   

   For Petitioner: James N. Watson, Jr., Esquire

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

   
   

   For Respondent: Lacy Mahon, Jr., Esquire

   350 East Adams Street Jacksonville, Florida 32202

   
   

   This case was presented through an Administrative Complaint Notice to Show Cause seeking revocation or suspension of Respondents alcoholic beverage license No. 26-28, 2-AP5, or imposition of civil penalty, based on the following charges:

   
   

   1. On or about the 17th day of February, 1981, you, your agent, servant or employee, to wit: Roger Jordan and Charles Joseph, Jr., did unlawfully purchase food stamps for money from a confidential informant, contrary to F.S.

      409.325 within F.S. 561.29.

      
      

   2. On or about the 26th day of February 1981, you, your agent, servant or employee, to wit: Charles Joseph Sr., did unlawfully purchase food stamps for money from a confidential informant, contrary to F.S. 409.325 within F.S. 561.29.

      
      

   3. On or about the 26th day of February 1981, you, your agent, servant or employee, to wit: Charles Joseph, Sr., did unlawfully deal in stolen property by purchasing food stamps represented as being stolen, contrary to F.S. 812.019 within F.S. 561.29.

      Petitioner submitted proposed findings of fact and conclusions of law. To the extent these proposed findings have not been adopted or otherwise incorporated herein, they have been rejected as irrelevant or inconsistent with the evidence.

      
      

      FINDINGS OF FACT

      
      

      1. Forrest and Charles Joseph, trading as C. Joseph Grocery, hold alcoholic beverage license No. 26-28, Series 2- APS. The licensed premises is located at 3323 Evergreen Avenue, Jacksonville, Florida.

         
         

      2. The charges herein arose from a public assistance fraud investigation conducted by the State Attorney, Fourth Judicial Circuit. "Confidential informants" were utilized on February 17 and 26, 1981, to exchange United States Department of Agriculture food stamps for cash with the owners or employees of

         C. Joseph Grocery. The transactions took place on the licensed premises.

         
         

      3. On February 17, 1981, a confidential informant, Dennis Rawlins, entered the licensed premises with 3265 in food stamps which he turned over to Respondents' employee, Jordan. Upon receiving the food stamps, Jordan approached Charles Joseph, Jr., who was then supervising the store. Joseph gave Jordan $150 for the stamps. Jordan kept $50 for himself and gave the remaining

         $100 to Rawlins in exchange for the food-stamps.

         
         

      4. On February 26, 1981, a confidential informant, Ronald Wampler, entered the licensed premises with $300 in food stamps which he traded for $100 cash. Wampler received the cash in exchange for the food stamps from a person he knew from previous visits to the store as Charles Joseph, Sr. Wampler represented the stamps as stolen property to this buyer.

         
         

         CONCLUSIONS OF LAW

         
         

      5. Section 409.325, Florida Statutes (1979) provides in part:

         
         

         * * *

         1. Any person who knowingly:

            1. Uses, transfers, acquires, traffics, alters, forges, or possesses, or

            2. Attempts to use, transfer, acquire, traffic, alter, forge, or possess, or

            3. Aids and abets another person

in the use, transfer, acquisition, traffic, alteration, forgery, or possession of,

a food stamp . . . in any manner not authorized by law is guilty of a crime and shall be punished as provided in subsection (5).

* * *

(5)(b) If the value of the assistance

or identification wrongfully received, retained, misappropriated, sought, or used is of an aggregate value of $200 or more in any 12 consecutive months, such person is guilty of

a felony of the third degree, punishable

as provided in Sec. 775.082, Sec. 775.083 or Sec. 775.084.

1. Under the above provisions, the purchase of food stamps 1/ is a crime. The purchase of over $200 worth of such stamps, which took place on each occasion, is a third degree felony.

   
   

2. Section 561.29, Florida Statutes (1981) provides in part:

   
   

   1. The division is given full power and authority to revoke or suspend the license of any person holding a license under the Beverage Law, when it is determined or found by the division upon sufficient cause appearing of:

      1. Violation by the licensee or his

         or its agents, officers, servants, or employees, on the licensed premises, or elsewhere while

         in the scope of employment, of any of the laws of this state or of the United States . . .

         
         

3. The above statute provides for beverage license revocation or suspension for violation of Florida law on the licensed premises. Such violation(s) must have occurred with the licensee's knowledge or lack of diligence in supervising the licensed premises. Woodbury v. State Beverage Department, 219 So.2d 47 (Fla. 1st DCA 1969). Here, there is no question of licensee's knowledge since one of the license holders was involved in the February 26, 1981, food stamp purchase.

   
   

4. Respondent argued that witness Wampler misidentified Forrest Joseph as Charles Joseph, Sr., during the course of the hearing, and moved to strike his testimony. However, Respondent introduced no evidence in support of this assertion or any other matter, and the motion is therefore denied.

   
   

5. Section 812.019, Florida Statutes (1979) provides in part:

   
   

   1. Any person who traffics in, or endeavors to traffic in, property that he

      knows or should know was stolen shall be guilty of a felony of the first degree, punishable

      as provided in Sections 775.082, 775.083, and 775.084.

      
      

6. Respondent is charged with violation of the above provision inasmuch as the stamps sold on February 26, 1981, were represented by the confidential informant to be stolen. The other evidence of food stamp fraud presented herein was corroborated by searches of the confidential informants before and after the transactions, use of "body bugs" and investigator's observation. However, the evidence supporting the stolen property charge was not so verified.

Furthermore, the witness apparently made no attempt to determine that the purchaser understood or believed the stamps to be stolen. This charge (Count 3) should therefore be dismissed.

RECOMMENDATION

From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondents guilty

of allegations contained in Counts One and Two of the Administrative Complaint and suspend alcoholic beverage license No. 26-28, Series 2-APS, for a period of ninety (90) days.

DONE AND ENTERED this 7th day of April, 1982, in Tallahassee, Florida.

R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 1982.

COPIES FURNISHED:

James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Lacy Mahon, Jr., Esquire

350 East Adams Street Jacksonville, Florida 32202

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

Charles A. Nuzum, Director Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 81-001823

Orders for Case No: 81-001823