STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0760

)

EUGENE BOATWRIGHT, SR., )

d/b/a PLAZA GROCERY, )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with notice of hearing furnished parties on March 9, 1984, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings in West Palm Beach, Florida on May 31, 1984. The issue for consideration was whether Respondent's alcohol and beverage license issued by the State of Florida, should be disciplined because of the alleged misconduct in the Notice To Show Cause filed in this case.

APPEARANCES

For Petitioner: Louisa E. Hargrett, Esquire

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

For Respondent: Ben J. Bryan, Jr., Esquire

Post Office 3230

Ft. Pierce, Florida 33448 BACKGROUND INFORMATION

Respondent was served with a Notice To Show Cause on January 27 1984, alleging that on September 15, 1983, he or his employees possessed or sold or offered for sale unstamped packages of cigarettes, possessed more than 50 cartons of untaxed cigarettes, and possessed in excess of 50 cartons of non-tax paid cigarettes in violation of Chapters 210 and 561 Florida Statutes, 1983.

Thereafter, on February 9, 1984, through his attorney, Respondent requested a formal hearing on the charges set out in the Notice To Show Cause.

At the hearing, Petitioner called no witnesses because of a stipulation between counsel which tended to establish all of the basic facts alleged in the Notice To Show Cause. Respondent however, testified in his own behalf and presented the testimony of Alfonzo Washington, a Detective with the Ft. Pierce Office of the St. Lucie County Sheriff's Department, Richard Paine White, an investigator with the Stuart, Florida office of the Division of Alcoholic Beverages and Tobacco. Respondent also introduced Respondent's exhibit A.

FINDINGS OF FACT

1. At all times pertinent to the allegations contained in the Notice To Show Cause, Respondent was issued Florida Alcoholic Beverage License 2APS Number 66-248 for the Plaza Grocery located at 2233 North 25th Street, Ft. Pierce, Florida.

   
   

2. The parties stipulated, and it is found, that Respondent had the cigarettes as alleged in the Notice To Show Cause in the quantities referred to and that said cigarettes were, in fact, untaxed. The parties further stipulated that on September 15, 1983, during a search conducted by officers of the St. Lucie County Sheriff's Department and the Division of Alcoholic Beverages and Taxation in Respondent's premises, the officers found in the retail rack behind the counter, twenty (20) packages of Salem Menthol 100's, and nine (9) packages of Salem Menthol Light 100's, that were untaxed. The nine (9) packages indicate that one package out of a carton of ten (10) packs was missing. In addition to the above, officers found in a box behind the counter, three (3) cartons of Salem Menthol Light 100's and four (4) cartons of Salem Menthol 100's; all untaxed and mixed in the box with cartons of taxed cigarettes. In a storeroom off from the sales area, officers found fifty-one (51) cartons of Salem Menthol Light 100's and nineteen (19) cartons of Salem Menthol 100's.

   
   

3. Detective Alfonzo Washington who has served in that capacity for two

   (2) years and for the Sheriff's office in other capacities for ten (10) years has known Respondent for twenty- five (25) years. On September 15, 1983, he received a report from a friend who runs a convenience store in that area that someone had offered untaxed cigarettes for sale. Because of his relationship with Respondent, Officer Washington went to the Respondent's store to warn him. Arriving sometime between 11:30 a.m. and noon, Washington talked with Respondent outside the store near his unmarked police car. Washington was in the car and Respondent was outside it. He advised Respondent that if anyone tried to sell him cigarettes to contact him; that he wanted Respondent to, "help me." Washington did not ask Respondent to buy the cigarettes if offered: only to be a lookout and to contact him if anyone offered to sell. Whether there was an actual request or not, it is clear that Respondent thought there was and he acted on what he considered to be the request of a bona fide law enforcement officer. A finding of this nature was subsequently made in Respondent's criminal trial in the same facts and while not binding in this hearing, that court order is of some probative value. Respondent did not, however call Washington when, as it appears, an individual did in fact offer to sell him cigarettes, the cigarettes in question here, later on in the day.

   
   

4. Respondent, Boatwright, in addition to running the Plaza Grocery Store, a convenience store which sells mostly dried and prepackaged foods, wine, beer, and cigarettes, operates a fruit harvesting and hauling business. He confirms Washington's story that he was leaving his store approximately noon on September

   15 when Washington approached him and asked him if anyone had offered to sell him cigarettes. Boatwright also confirms Washington's testimony that he explained what had happened but contends that Washington asked for his help in solving the case. Respondent agreed that Washington left after a very short conversation and no detailed instructions were given.

   
   

5. Respondent then ran some errands, going to the bank, and to a car dealership, arriving back at the grocery store at approximately 2 or 2:30 p.m. While he was working on some equipment in his repair shop in back of the store, a black male who he knew as "Peanut" drove up in a blue and white Cadillac.

   Peanut asked Respondent if he was interested in buying any cigarettes. This immediately rang a bell with Respondent who then asked Peanut how many he had and how much he wanted. Peanut said he had about eighty (80) cartons and was willing to sell them for $400.00. When Respondent asked if he would take less, Peanut, after talking with the other individual in the car, agreed to sell the entire lot for $300.00. At this point, Respondent advised Peanut he would have to come back later in the day because he, Respondent, did not have that much money with him. If fact, Respondent did have $300.00 with him at the time and contends he used this subterfuge only to allow him time to attempt to get Washington to the store. After talking with his friends in the car, Peanut agreed to come back later and he, Peanut, took the cigarettes which were in unopened cartons packed in two (2) brown boxes, into the store and in the storeroom where Respondent told him to put them. This was approximately 3:00

   p.m. in the afternoon. The cigarettes were placed just inside the storeroom door next to some groceries, completely out in the open. After depositing the cigarettes, Peanut indicated that he would be back between 4:00 and 5:00 p.m.

   
   

6. Respondent contends that he expected Officer Washington to come by on his way home from work somewhere around 4:00 p.m. Washington agreed that he, usually, got off work and passed by the Plaza Grocery on his way home and that he sometimes stopped in to talk with Respondent. However, while Washington indicated he failed to come in more than he stopped in, Respondent contends that Washington stopped in more often than not and that it was because of this that he did not call Washington intending to see him on the way home. He indicates that if Washington went by without stopping, he was going to call Washington at home and have him come over to be there when Peanut returned. On balance, it would appear Respondent is in error here.

   
   

7. As it happened, however, approximately a half an hour after Peanut left, beverage agents and sheriff's department detectives, as their last stop in their check of several area convenience stores for the stolen cigarettes, came into the store while Respondent was outside talking. The agents came up in a brown car and Respondent thought it was relating to fruit harvesting.

   Respondent went inside the store to see what the agents wanted and found that several of the officers, including Officer White, had already gone behind the counter to the cigarette rack. At this point Respondent asked what was the problem. White replied that he wanted to check cigarettes and when White asked who Respondent bought the cigarettes from, Respondent who did not know who any of these people were replied, the Eli Witt Company. When one detective asked him if he had any more cigarettes, he said "yes" and attempted to show him where the cigarettes were in the storeroom. Ultimately the detectives advised Respondent of his right to remain silent, but he waived this right and fully explained what had happened. When Investigator White, a new beverage agent with whom respondent was not familiar, found cigarettes that were untaxed in the cigarette retail rack, he advised Respondent of his testimonial rights and Respondent indicated a desire to make a statement. In this statement, respondent reiterated the story outlined above to the effect that Washington had approached him earlier in the day to solicit his help in watching for untaxed cigarettes. He then went on to indicate the story of how Peanut had come and left the cigarettes there.

   
   

8. September 15, 1983 was on a Thursday. The following Sunday, Investigators Young's wife called White and indicated that Respondent had called her in an effort to talk to Young. White called Respondent back and was told by Respondent that Peanut had come back that day in another car to threaten him

   into either returning the cigarettes or paying for them. Respondent advised White that he had a partial tag number and a description of the vehicle. He also advised White that he had reported this to the Sheriff's Department through the 911 number. At this, White advised Respondent to keep an eye out and to call if anything else developed.

   
   

9. The cigarettes in the retail rack were in plain view and were not hidden as were the cigarettes in the box behind the counter. Investigator White confirms Respondent's story that the cigarettes in the storeroom were not hidden and were left out in the boxes with the end labels of each carton showing. This was somewhat contradicted by the testimony of Petitioner's rebuttal witness, Detective Williams from the County Sheriff's office, who stated that the cigarettes were somewhat concealed. Nonetheless, it would appear that the cigarettes were not concealed and there is no evidence to show that Respondent attempted to hide the cigarettes or make them unavailable to the investigating officers. In fact, it appears the cigarettes were where Peanut had left them with the exception of those few cartons taken from the storeroom and put into the retail rack behind the counter. In that regard, Respondent denies having moved the cigarettes and contends his five (5) employees denied moving them. It is clear that they were moved, however, more likely by an employee who now denies it.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of the proceedings.

    
    

11. In the three subparagraphs of the Notice To Show cause, Petitioner alleges that Respondent possessed sold, and offered for sale, unstamped packages of cigarettes in violation of Section 210.18(1) and Section 501.29, Florida Statutes, (1); possessed more than fifty (50) cartons of untaxed cigarettes in violation of Section 210.18(6)(b), Florida Statutes, (2); and; possessed more than fifty (50) cartons of non-tax paid cigarettes in violation of Section 210.18(6)(b) and Section 561.29, Florida Statutes, (3).

    
    

12. Section 210.18(1) Florida Statute makes it a misdemeanor in the first degree for anyone to sell or offer for sale unstamped packages of cigarettes. Subsection (6)(b) of the same Section makes it a felony in the third degree to possess unstamped cigarettes with the knowledge they have not been taxed. The Notice To Show Cause does not indicate which subsection of Section 561.29, Florida Statutes has been violated, but a review of that Section indicates that the other cited violations, if proven, would also be a violation to Section 561.29(1)(a), which permits discipline of a license for a:

    
    

    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, or violation of any municipal or county regulation in regard to the hours of sale, service, or consumption of alcoholic beverages, or engaging in or permitting disorderly conduct on the licensed premises,

       or permitting another on the licensed premises to violate any of the laws of this state or

       of the United States; except that whether or

       not the licensee or his or its agents, officers, servants, or employees have been convicted in any criminal court of any violation as set forth in this Paragraph shall not be considered in proceedings before the division for suspension or revocation of a license except as permitted by chapter 92 or the rules of evidence.

       
       

13. Here, there is no doubt that Respondent was in possession of the cigarettes in question; that when the officer came in, some were in the cigarette rack offered for sale; and that one pack had already been sold. However, it is also very clear that while Respondent suffered from an overabundance of desire to assist and while he also exercised unbelievably bad judgment in accepting the cigarettes and attempting to play detective, there is insufficient evidence to establish that he intentionally sold, or offered for sale untaxed cigarettes. To the contrary, it is clear that he sincerely intended to cooperate with law enforcement officials and over-did it. The experiences he has undergone since that time constitute punishment enough for his error in judgment.

RECOMMENDED ACTION

Based on the foregoing Findings Of Fact and Conclusions Of Law, it is, therefore,

RECOMMENDED That, the Notice To Show Cause filed in this case against the license holder, Eugene Boatwright, Jr., be dismissed.

DONE and RECOMMENDED this 14th day of August, 1984, in Tallahassee, Leon County, Florida.

ARNOLD H. POLLOCK

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 14th day of August, 1984.

COPIES FURNISHED:

William A. Hatch, Esquire Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32301

Ben L. Bryan, Jr., Esquire Post Office Box 3230

Fort Pierce, Florida 33448

Mr. Frank Commisso

Post Office Drawer 2750

West Palm Beach, Florida 32301

Howard M. Rasmussen, Director Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32301

Gary R. Rutledge Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32301

Louisa E. Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 84-000760

Orders for Case No: 84-000760