STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC BEVERGES ) AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2915

)

SHIRLEY DONOVAM, d/b/a )

SHIRLEY'S GROCERY, )

)

Respondent. )

) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2916

)

SHIRLEY DONOVAN, d/b/a )

SHIRLEY'S GROCERY, )

)

Respondent. )

)

RECOMMENDED ORDER

The Division of Administrative Hearings, by its duly designated hearing officer R. L. Caleen, Jr., held a formal hearing in these consolidated cases on December 2, 1982, in Miami, Florida.

APPEARANCES

For Petitioner: Janice G. Scott, Staff Attorney

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

For Respondent: No appearance.

ISSUE

Whether respondent's alcoholic beverage license should be disciplined on charges that she, her agent or employee, purchased cigarettes for retail from other than a wholesaler, failed to maintain invoices for cigarette purchases on the premises for three years, and possessed on the premises lottery tickets or paraphernalia used in connection with a lottery.

BACKGROUND

On January 12, 1982, petitioner Division of Alcoholic Beverages and Tobacco ("DABT") , served respondent Shirley Donovan, trading as Shirley's Grocery ("respondent") with two separate notices to show cause why her alcoholic beverage, license No. 23-3145, Series 2-APS, should not be disciplined for alleged violations of Chapter 561, Florida Statutes. On February 21, 1982, respondent disputed the charges and requested a formal hearing.

On October 27, 1982, DABT referred both cases to the Division of Administrative Hearings for assignment of a hearing officer. By notice, dated November 8, 1982, hearing was set for December 2, 1982. The notice was served on respondent, by U.S. Mail, at 5500 Northwest 17th Avenue, Miami, Florida, her last known address. She did not, however, appear at hearing.

On DABT's motion, these cases were consolidated for hearing. DABT called as witnesses, beverage officers John Harris, Carol Houston, Riley Breedlove and Edward Pfitzenmaier. Petitioner's Exhibits' Nos. 1 thru 8 1/ were received into evidence. DABT submitted proposed findings of fact and conclusions of law on December 16, 1982. No transcript of the proceedings has been filed.

Based upon the evidence presented, the following facts are determined:

FINDINGS OF FACT

1. Respondent holds alcoholic beverage license No. 23-3145, Series 2-APS, and operates a business known as Shirley's Grocery at 5500 Northwest 17th Avenue, Miami, Florida (Testimony of John Harris; P-4, P-6)

   
   

2. Based on information received from a confidential informant, Beverage Officer Carol Houston conducted an inspection of respondent's licensed premises on October 2, 1981. Officer Houston, accompanied by two other beverage officers, identified herself to Willie Mae Robinson, an employee behind the cash register. Officer Houston then examined the beverage license displayed on the wall and began checking cigarette tax meter numbers on the cigarettes displayed for sale behind the counter. (Testimony of Houston)

   
   

3. The officers questioned Ms. Robinson about a padlocked cabinet located in the southeast portion of the premises, the area where alcoholic beverages were stored. She disclaimed any knowledge of the packaged cigarettes which were visible through the locked cabinet doors. The officers opened the cabinet with a key from the cash register and found 837 packages of cigarettes and a shotgun. The cigarette packages were marked with tax meter numbers which DABT had previously assigned to Atlantic Tobacco Company, The Southland Corporation, Eli Witt Company, Winn Dixie Stores (which do not wholesale cigarettes) and Miami Tobacco Company. (Testimony of Houston; P-2)

   
   

4. Ms. Robinson, who could produce no invoices for these cigarettes, called respondent Shirley Donovan to the premises. Ms. Donovan stated she had no invoices for the cigarettes, which she said belonged to her night manager, Willie Lovette. (She later executed a sworn statement to this effect.) Mr. Lovette was then called to the premises and signed a sworn statement that he bought the cigarettes, for resale, from two unidentified black males while working at the licensed premises on September 28, 1982. (Testimony of Houston; P-5, P-6)

5. The cigarettes were partially visible through the locked cabinet doors, the cabinet was in full view in the alcoholic beverage storage area of the licensed premises, and the key in the cash register opened the cabinet. These facts support an inference that respondent either knew of the illicit cigarettes or failed to diligently supervise the licensed premises.

   
   

6. Before leaving the licensed premises on October 2, 1981, Officer Houston served respondent with a written notice that DABT rules require that cigarette invoices be retained on the licensed premises. The packages of cigarettes found in the cabinet were then seized and placed in the DABT evidence vault. (Testimony of Houston; P-3, P-7)

   
   

7. On October 15, 1981, Officer Houston and Beverage Officer Edward Pfitzenmaier returned to respondent's licensed premises to serve notice of the Division's intent to file administrative charges relating to the October 2, 1981 inspection. Willie Mae Robinson, again behind the cash register, summoned respondent who, when questioned, stated that she bought cigarettes only from Cantors, Miami Tobacco Company and, on one occasion, from Eagle Discount. Cantors and Miami Tobacco Company were cigarette wholesalers; Eagle Discount was not. Invoices on the premises substantiated cigarette purchases from Cantors on August 10, 17, 18, 19, 20, and October 2, 11, 14, 1981. (Testimony of Houston, Pfitzenmaier)

   
   

8. Further inspection of the cigarettes on display behind the-cash register disclosed 476 cigarette packages which bore cigarette tax meter numbers previously assigned by DABT to the following businesses:

   
   

   41597 - Atlantic Tobacco Company 43936 - Winn Dixie Stores, Inc. 40501 - Eckerd Tobacco Company

   41247 - Two Brothers Tobacco Company 43025 - The Southland Corp.

   40875 - Eagle Family Discount 41851 - Eagle Family Discount 46087 - The Southland Corp.

   
   

   Respondent could produce no invoices for these cigarettes, some of which bore the same meter numbers as the packages found on the premises in the locked cabinet on October 2, 1981. The cigarettes were seized by Officer Houston and placed in the DABT evidence vault. (Testimony of Houston, Pfitzenmaier; P-7)

   
   

9. During the October 15, 1982, inspection and search for invoices on the licensed premises, Officer Pfitzenmaier found numerous slips of paper, booklets and calendars in a cigar box and loosely scattered behind the counter. The calendars were marked for different dates with numbers in series. The booklets, including "King Tut's Dream Book," contained various numerical listings based upon such topics as horoscopes, lucky days, lucky numbers, and racing results. Such materials are commonly used in connection with lotteries. The markings support an inference that these materials had been used or were being used in connection with a lottery. They were seized by Officer Pfitzenmaier and placed in the DABT evidence vault. (Testimony of Pfitzenmaier; P-8)

   
   

10. On at least three previous occasions, DABT fined respondent for purchasing cigarettes from other than a wholesaler and for failing to maintain, on the premises, invoices for cigarette purchases. On the third occasion, DABT also suspended her license. (Testimony of Houston)

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes (1981).

    
    

12. DABT is authorized to revoke or suspend an alcoholic beverage license when it is shown that the licensee, or its agent or employee, while on the licensed premises, violated any law of the state. 561.29(1)(a), Fla.Stat. (1981). Where the unlawful activity is committed by the licensee's agent or employee, the licensee's beverage license may be suspended or revoked upon a finding that the licensee was negligent in her supervision of the licensed premises. Lash, Inc. v. State, Department of Business Regulation, 411 So.2d 276 (Fla. 3rd DCA 1982); Pauline v. Lee, 147 So.2d 359 (Fla. 2d DCA 1962). Simple negligence is all that need be shown. Lash, Inc. v. State, Department of Business Regulation, supra.

    
    

13. The evidence established that respondent, on October 2, 1981, and October 15, 1981, violated Section 210.09(3), Florida Statutes (1981), which provides:

    
    

    (3) All . . . retail dealers shall maintain and keep for a period of

    3 years at the place of business where any transaction takes place, such records of cigarettes received, sold or delivered within the state as may be required by the division.

    
    

    The Division, by Rule 7A-10.19 Florida Administrative Code, requires retail dealers to keep a record of their purchases of cigarettes for retail, including the date purchased, the quantity, and the name and address of the person or firm from whom purchased. Further, Section 210.15(1)(h), Florida Statutes (1981), prohibits the purchase of cigarettes, for retail purposes, from any person who does not hold a wholesale dealer permit, and requires invoices for cigarette purchases to state the place of business for which the purchase was made.

    
    

14. Respondent either knew about the illicit cigarettes which William Lovette purchased, for resale, from two :unknown males on September 28, 1981, or was negligent in supervising the premises and failing to discover the cigarettes, their origin and their lack of proper invoices. Neither could respondent provide any invoices for the cigarettes seized October 15, 1981 from the display rack behind the cash register, some of which were purchased from persons other than a wholesaler. This occurred even after she received written notice on October 2, 1981 concerning the invoice requirement.

    
    

15. Finally, on October 15, 1981, respondent violated Section 849.09(1)(k), Florida Statutes (1981), by possessing on the premises--or through her negligent supervision of the premises, all in her agent or employee to possess--numerous items used in connection with a lottery.

    
    

16. DABT's proposed findings of fact which are incorporated in this recommended order are adopted. Otherwise, they are rejected as unsupported by the evidence or unnecessary to resolution of the issue presented.

17. Respondent has a record of repeated violations of Chapter 561, Florida Statutes and has presented no extenuating or mitigating evidence. Under such circumstances, revocation of her beverage license is warranted.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That respondent's alcoholic beverage license no. 23-3145 Series 2-APS, be revoked.

DONE AND RECOMMENDED this 11th day of February, 1983, in Tallahassee, Florida.

R. L. CALEEN, JR. 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 11th day of February, 1983.

ENDNOTE

1/ Petitioner's exhibits will be referred to as "P- ."

COPIES FURNISHED:

Janice G. Scott, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Ms. Shirley Donovan Shirley's Grocery

5500 Northwest 17th Avenue Miami, Florida

Howard M. Rasmussen, Director

Division of Alcoholic Beverages & Tobacco 725 South Bronough Street

Tallahassee, Florida 32301

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

Docket for Case No: 82-002915

Orders for Case No: 82-002915