STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 88-6113

) WILLIE COACHMAN d/b/a WILLIE'S ) FINA STATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on February 14, 1989, in Tampa, Florida.

APPEARANCES

For Petitioner: Thomas A. Klein, Esquire

725 South Bronough Street Tallahassee, Florida 32399-1007

For Respondent: Richard C. Minardi, Esquire

111 South Moody Avenue Tampa, Florida 33609

BACKGROUND

This matter arose when petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, issued a notice to show cause on November 17, 1988 charging that respondent, Willie Coachman d/b/a Willie's Fina Station, a licensed beer vendor, had violated state law in several respects.

Thereafter, respondent requested a formal hearing under Subsection 120.57(1), Florida Statutes (1987) to contest the agency's action. The matter was referred by petitioner to the Division of Administrative Hearings on December 9, 1988 with a request that a hearing officer be assigned to conduct a hearing. On January 24, 1989, petitioner filed an amended notice to show cause which added a fourth count. The motion was granted at hearing.

By notice of hearing dated December 16, 1988 a final hearing was scheduled on February 14, 1989 in Tampa, Florida.

At final hearing, petitioner presented the testimony of Keith B. Hamilton, William B. Fisher, Priscilla Turner and Michael S. Freese, all Division investigators, and offered petitioner's exhibits 1-6. All exhibits were received in evidence. Respondent testified on his own behalf and presented the

testimony of Edward Freney, a warehouse manager for a cigarette wholesaler. He also offered respondent's exhibits 1-4. All exhibits were received in evidence.

There is no transcript of hearing. Proposed findings of fact and conclusions of law were filed by petitioner and respondent on February 27 and March 20, 1989, respectively. 1/ A ruling on each proposed finding is made in the Appendix attached to this Recommended Order.

The issue is whether respondent's license should be disciplined for the reasons alleged in the notice to show cause, as amended.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. At all times relevant hereto, respondent, Willie Coachman, was a licensed beer vendor having been issued license number 39-02165 by petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division). Respondent uses his license at a business known as Willie's Fina Station located at 1312 East Columbus Drive, Tampa, Florida. The license is a Series 1-APS which authorizes Coachman to sell beer by package only for consumption off premises.

   
   

2. On August 17, 1988 a Division investigator, Keith B. Hamilton, conducted an investigation of Coachman's licensed premises to determine if respondent was selling beer. He did so since Coachman's license was then under a suspension. After finding the beer coolers sealed with tape, Hamilton left the premises and stood outside the front door. He then observed a black male enter the premises carrying two boxes filled with cartons of cigarettes. The black male gave them to the store clerk, and Hamilton observed the clerk pay the male $80 from the cash register for the cigarettes. The cigarettes were then placed on the floor near Coachman's office. The male was not driving a vendor's truck nor was he dressed in a vendor's uniform.

   
   

3. Hamilton telephoned another Division investigator, William P. Fisher, who came to the premises some ninety minutes later. The two entered Coachman's store, identified themselves to a clerk and inspected the stock room.

   
   

4. According to Hamilton, Coachman is authorized to buy cigarettes from two area cigarette wholesale distributors, Costco Wholesale Corporation (Costco) and Eli Witt Corporation (Eli Witt). Each wholesaler has a distinctive stamp on its cigarette packages so that an investigator can easily determine from which wholesaler a vendor obtained cigarettes.

   
   

5. Upon examining the cigarettes in Coachman's stock room, including the two boxes just sold to the cashier, Hamilton and Fisher noted that approximately 3,137 packs did not have a Costco or Eli Witt stamp. After the clerk could not produce invoices to verify that the cigarettes were purchased from a licensed wholesale dealer, the 3,137 packs were seized and taken to an evidence vault.

   At that time, the clerk acknowledged that Coachman had authorized her to make cigarette purchases from patrons.

   
   

6. Coachman arrived at the premises as the investigators were leaving. He objected to the seizure saying that some of the cigarettes being taken were "good." Coachman was told the cigarettes would be returned if he could produce invoices establishing that they were validly purchased.

7. During the course of the inspection on August 17, investigator Fisher observed nine bottles of Chivas Regal Scotch on a desk in Coachman's office. The bottles were unopened. According to Hamilton, it is unlawful for a beer vendor to have such alcoholic beverages on the premises even for personal

   consumption. Thus, even though Coachman maintained, without contradiction, that the scotch was for his own use, it was improper for him to store the same on his premises.

   
   

8. After the cigarettes were placed in the evidence vault, Coachman produced certain invoices for the Division and also had several wholesalers telephone the Division to confirm various sales to Coachman. This resulted in

   540 packs being returned to Coachman. Some 2,502 packs still remain in the Division's custody.

   
   

9. At hearing, Coachman indicated that he normally buys some $30,000 to

   $40,000 of cigarettes monthly from various wholesalers. Also, he offered into evidence various receipts for purchases made in July and August 1988 and documentation verifying that a large quantity of cigarettes was obtained through transfers (exchanges) of cigarettes with other vendors. This latter situation occurs whenever one vendor has a slow-moving brand and exchanges them for a different brand with another vendor. However, each transfer must be documented with paperwork.

   
   

10. The Division did not inventory the seized cigarettes by brand or dealer. Its evidence vault receipt, which has been received in evidence as petitioner's exhibit 3, reflected only that 2502 packs of cigarettes were taken. However, by credible testimony it was established that none of the confiscated cigarettes had indicia to show that they were purchased from Costco or Eli Witt. This was not contradicted.

    
    

11. On the evening of August 31, 1988 investigator Turner and two informants carried fifteen cases of beer to another licensed premises operated by Coachman. The beer was transported in an unmarked, private vehicle. They offered to sell the beer to Coachman for $4.00 per case but then agreed to sell it for $3.00 per case, which is substantially below the fair and wholesale market value. The sale took place at the house of Coachman's children but Turner was paid with monies from respondent's cash register. Prior to the sale, Division personnel placed special markings on the bottom of the cans for identification purposes so that they could be later identified.

    
    

12. On September 6, 1988 investigator Freese went inside respondent's premises and purchased a six pack of Busch beer for $2.69. The package was one of those previously sold to Coachman on August 31.

    
    

13. Coachman denied reselling the Busch beer and contended it was purchased for personal consumption and use by his children. However, this testimony is not accepted as being credible. Also, he contended that all cigarettes were legally purchased from wholesalers or by exchange with other dealers and that he had appropriate documentation on hand at all times. However, such documentation was not on hand on the night the cigarettes were taken, and Coachman did not show that any of the cigarettes referred to on the documents supplied at hearing were the same that were seized by the investigators on August 17. Thus, the documentation was not sufficient.

    
    

14. Coachman's license has been subject to disciplinary action on two other occasions. It was first suspended for thirty days effective January 6,

    1987 for Coachman dealing in stolen property and purchasing cigarettes from other than a wholesale dealer. It was suspended a second time for a twenty day period effective August 9, 1988 for respondent (a) purchasing cigarettes from other than a wholesale dealer, (b) failing to maintain invoices of cigarette purchases on the premises, (c) possessing beverages not permitted to be sold under his license, (d) gambling and possession of gambling paraphernalia, and

    (e) conducting a prohibited lottery. Under petitioner's policy, as explicated at hearing, a license is revoked after repeat violations occur.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1987).

    
    

16. Since Coachman's license is not a professional license, Ferris v. Turlington, 510 So.2d 292 (Fla. 1987), the Division need only prove the allegations in the notice to show cause, as amended, by a preponderance of evidence.

    
    

17. Coachman is charged with violating state law in four respects. First, he is charged with purchasing cigarettes (2502 packs) "from other than a person holding a wholesale dealer permit, contrary to Florida Statutes 210.15(h)." Secondly, it is alleged respondent failed "to maintain and keep for a period of three years at (his) place of business... such records of cigarettes received, sold or delivered within the state, contrary to Florida Statutes 210.09(3)." Third, he is charged with having on his premises nine bottles of scotch "not authorized by law to be sold under (his) license, contrary to Florida Statutes 562.02." Finally, the Division alleges that Coachman "did traffic in or endeavor to traffic in ten cases of Busch Beer and five cases of Old Milwaukee Beer for $45.00, a price substantially below fair or wholesale market value, which (respondent) knew or should have known was stolen, contrary to Florida Statute 812.019(1) within Florida Statutes 561.29(1)(a)."

    
    

18. Initially, a brief discussion is required with respect to respondent's contention that the agency was required to produce the seized cigarettes at hearing. Put another way, respondent contends that, to establish the charge of purchasing unauthorized cigarettes, the Division must produce a corpus delicti. However, an administrative hearing is not a criminal trial, Department of Law Enforcement, Criminal Justice and Standards Commission v. Dukes, 484 So.2d 645 (Fla. 4th DCA 1987), and criminal rules, such as corpus delicti, do not apply. Further, respondent's contention that the confiscated scotch had to be produced at hearing and subjected to a chemical analysis must be rejected for the same reason. Cf. Forehand v. School Board of Washington County, 481 So.2d 953 (Fla. 1st DCA 1986)(proof of identity of marijuana need only be established in an administrative setting by lay testimony). Therefore, the Division was not obliged to produce the confiscated material at hearing.

    
    

19. Respondent has also questioned his ability to verify whether the seized cigarettes were lawfully purchased since the Division inventory carries only the number of packages seized and not an itemized listing by brand. While it is true that Division records reflect only that 2,502 packages were taken, respondent could have easily obtained an itemized listing of such contraband through appropriate discovery tools. Indeed, he had six months to do so between the time of seizure and the time of final hearing. Therefore, his contention that he was denied due process is rejected.

20. By a preponderance of evidence, the Division has established the validity of each of the charges. As to the charge in Count I that respondent purchased cigarettes from one other than a wholesaler, it was established that respondent had over 2,500 packs of cigarettes on his premises without appropriate invoices. The lack of documentation constituted a separate violation, as alleged in Count II. Also, it was uncontroverted that respondent had alcoholic beverages on his premises not authorized to be sold under his 1- APS license. Thus, even though the illicit beverages were for his own use, and were kept in respondent's office and not in the general retail area of the store, the charge in Count III has been sustained. Finally, it is noted that a person can be convicted of endeavoring to traffic in property which was known to be stolen or which he should have known was stolen even though the goods in question had not been stolen. Padgett v. State, 378 So.2d 118 (Fla. 1st DCA 1980). In other words, proof of the stolen character of the goods is not essential to proof of the offense. By respondent purchasing the beer at a price substantially below fair market value ($3.00 per case), an inference was created to support the charge of dealing in stolen property. Townsley v. State, 443 So.2d 1072 (Fla. 1st DCA 1984). The subsequent sale of one six pack of the beer provided the remaining element of intent to show a violation under subsection 812.019(1). Therefore, Count IV has been sustained.

    
    

21. In view of respondent's prior disciplinary record, and given the agency policy on repeat violations, his license should be revoked.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in the notice to

show cause, as amended, and that his APS license number 39-02165 be REVOKED.

DONE and ENTERED this 23rd day of March, 1989, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1989.

ENDNOTE

1/ On February 28, 1989 respondent made an ore tenus request for an extension of time in which to file his proposed order. A written motion was later filed on March 6, 1989. The request was orally granted on March 1, 1989 and confirmed by written order of the undersigned on March 13, 1989.

COPIES FURNISHED:

Thomas A. Klein, Esquire 725 South Bronough Street

Tallahassee, Florida 32399-1007

Richard C. Minardi, Esquire

111 South Moody Avenue Tampa, Florida 33609

Leonard Ivey, Director Department of Business Regulation, Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1020

Van B. Poole Secretary

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

Joseph A. Sole General Counsel

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

Docket for Case No: 88-006113

Orders for Case No: 88-006113