vs. ) CASE NO. 82-1149
Respondent. )
This matter came on for hearing in Tampa, Florida on May 25, 1982, before the Division of Administrative Hearings and its duly appointed Hearing Officer,
Special Agent BILLY M. BROWN, in violation of Title 7, U.S. Code 2024(B) and 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 not supported by the evidence.
Respondent, Angel Portillo d/b/a Zippo's, is an alcoholic beverage licensee holding beverage license no. 39-518, Series 2-COP, issued by Petitioner. Zippo's is located at 1220 West Platt Street, Tampa, Hillsborough County, Florida. At all times pertinent to this cause Margaret Frey was employed as a barmaid at Zippo's.
Billy M. Brown was at all time pertinent to this cause a special agent for the United States Department of Agriculture. David Menendez was at all times pertinent to this cause an investigative aide for the United States Department of Agriculture. Also, at all times pertinent Menendez was under the supervision and direction of Brown.
Between June 18 and July 10, 1980, Brown and Menendez conducted an undercover investigation at Zippo's concerning allegations of food stamp fraud or trafficking in food stamps. At all times pertinent to this cause, Zippo's was not authorized by the United States Department of Agriculture to receive or redeem food stamps issued by the United States Government.
On June 18, 1980, Margaret Frey, while on duty at Zippo's, purchased one hundred fifteen (115) dollars worth of food stamps from Menendez for sixty five (65) dollars cash. On this occasion, Menendez was accompanied by Brown.
On June 23, 1980, Frey, while on duty at Zippo's, purchased two hundred ten (210) dollars worth of food stamps from Menendez for one hundred (100) dollars cash. Menendez was again accompanied by Brown.
On June 30, 1980, Frey, while on duty at Zippo's, purchased five hundred thirty (530) dollars worth of food stamps for two hundred (200) dollars cash from Brown.
On July 7, 1980, Frey, while on duty at Zippo's, purchased five hundred twenty (520) dollars worth of food stamps for two hundred fifty (250) dollars from Brown. However, the transaction was executed at an apartment next door to Zippo's.
On July 10, 1980, Frey, while on duty at Zippo's, purchased five hundred twenty five (525) dollars worth of food stamps for two hundred fifty
(250) dollars cash from Brown.
Portillo apparently had no actual knowledge of Frey's actions as he held a full-time job with a vending company during all times pertinent to this case.
At all times pertinent to this cause, Respondent Portillo was absent from the licensed premises. Portillo's testimony established that he is only at Zippo's in the morning prior to opening, at shift change each afternoon (approximately 4:00 p.m.) and at closing time in the late evening or early morning.
At all times pertinent to this cause, Margaret Frey was the only employee of Zippo's on the licensed premises.
Frey initially testified that funds to purchase the food stamps ($865 total) were personal funds. She subsequently testified that her former husband provided some of the funds for these purchases and later testified that some of the funds for the purchase of food stamps came from a joint account she and her former husband had established at Freedom Federal in Tampa, Florida.
Frey redeemed a portion of the food stamps purchased from Menendez and/or Brown at a grocery store nearby Zippo's, which grocery store was also owned by Respondent. This grocery store is and was at all times pertinent to this cause a retail store authorized to accept and redeem food stamps.
Although Frey claimed that all purchases of food stamps made by her were conducted in a secretive fashion, Menendez's testimony established that on June 18, 1980, her purchase of one hundred fifteen (115) dollars worth of food stamps from him was conducted openly with said transaction made across the bar.
As a result of the food stamp purchases discussed above, Frey was arrested and charged with violations of Federal Law by knowingly receiving food stamps in a manner not authorized by the Food Stamp Act of 1964, as amended. She was subsequently adjudicated guilty of these violations.
CONCLUSIONS OF LAW
Pursuant to Title 7, U.S.C.A 2024(b), it is illegal for anyone knowingly to possess coupons in a manner not authorized by Title 7 or the regulations issued under this title. If the value of such coupons so possessed exceeds one hundred dollars, the offense becomes a felony.
Title 7, U.S.C.A. 2016(b), provides that coupons (food stamps) issued to eligible households may be used only by such recipients to purchase food in retail food stores which have been approved for participation in the food stamp
program. When an eligible household uses the coupons (food stamps) to purchase food, such recipient may receive cash in exchance thereof so long as the cash received does not equal or exceed the value of the lowest coupon denomination issued.
Under Section 561.29(1)(a), Florida Statutes, violation of any state or federal law by an agent, servant or employee of a licensee, while on the licensed premises or elsewhere while in the scope of employment, is a violation of the Beverage Law.
This provision has been construed to require that, prior to license revocation or suspension, the licensee should be found culpably responsible for the violation through or as a result of his own negligence, intentional wrongdoing or lack of due diligence. Pauline v. Lee, 147 So.2d 359 (Fla. 2nd DCA 1962)
The facts of Pauline v. Lee were that on four separate and consecutive days, various officers of the Tampa Police Department and Beverage Officers of the State Division of Beverage were solicited by employees, agents, or servants of the licensee to buy them drinks and were solicited for purposes of sex. The court in commenting on the propriety of the revocation of the beverage license in question stated at page 364 that the:
persistence and practiced manner [of the violations]. . . is sufficient to permit
a factual inference leading to the conclusion that such violations of law were either fostered, condoned or negligently overlooked by the licensee, notwithstanding his absence from the premises on the dates in question.
In a subsequent case, G & B of Jacksonville, Inc. v. State, 371 So.2d 138, 139 (Fla. 1st DCA 1979) , the court stated:
While the licensee is not an insurer that an agent or servant will not in any particular violate any law of the State of Florida, such licensee nevertheless has a duty to exercise reasonable care and diligence to see that the licensed place of business is conducted in a lawful manner and that his employees do not violate any of the laws of the State of Florida.
In commenting of the nature of the allegations or violations charged against the licensee in that case the court stated at page 139:
We are not here presented with a single isolated occurrence. The evidence herein is sufficient to support the order entered. See Pauline v. Lee [supra.]. If
a licensee does not maintain sufficient intelligence with reference to activities at his or its licensed premises that two
or more of its employees are engaged in such activity as was herein established, then such licensee must be held to
have been lacking in reasonable diligence in the proper management of its licensed premises.
In the instant matter the licensee, by his own testimony, established that he was present at the licensed premises only in the morning prior to the opening of said premises, at the shift change around 4:00 p.m., and at closing time.
In this cause, there were four separate instances where an employee of Respondent purchased food stamps contrary to Federal Law on the licensed premises in violation of Section 561.29, Florida Statutes. The illegal acts commenced on June 18, 1980 and continued through July 10, 1980. During the period of these activities, Respondent failed to supervise the premises and therefore failed to exercise the diligence required of him to insure that his licensed business was conducted in a lawful manner and that his employees did not engage in illegal activity. Here, there was not a single or isolated incident, but rather a Persistent course of illegal conduct.
From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of the allegations contained in
Counts 1, 2, 3 and 5 of the Administrative Complaint. It is further
RECOMMENDED that Respondent's alcoholic beverage license no. 39-518 be suspended for a period of 14 days.
DONE and ENTERED this 14th day of July, 1982 at Tallahassee, Florida.
R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1982.
John A. Boggs, Esquire Department of Business
Robert A. Herce, Esquire HERCE & MARTINEZ
4602 N. Armenia Avenue Tampa, Florida 33603
Gary A. Rutledge, Secretary Department of Business
Charles A. Nuzum, Director Division of Alcoholic Beverages
