STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF )

ALCOHOLIC BEVERAGES AND )

TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 90-6604

) HECK PROWSE, d/b/a FIVE BOROS ) FOOD MART, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case at Miami, Florida, on February 11, 1992, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances at the hearing were as follows:

FOR PETITIONER: Monica Atkins White, Esquire

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

FOR RESPONDENT: Mr. Heck Prowse

Five Boros Food Mart

19817 Northwest 2nd Avenue Miami, Florida 33169

STATEMENT OF THE ISSUE

This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent and his license, including suspension or revocation of the license, on the basis of allegations that the Respondent interfered with a DABT law enforcement sergeant who was inspecting his licensed premises, committed battery on the sergeant, and resisted arrest with violence.

PRELIMINARY STATEMENT

By means of an Amended Notice To Show Cause dated November 14, 1991, the Respondent was charged with four counts of misconduct, three of which related to events on July 1, 1990, and one of which related to an event on June 26, 1991.

At the hearing the Petitioner voluntarily dismissed the count related to an event on June 26, 1991, and proceeded on the remaining three counts.

At the hearing the Petitioner presented the testimony of two witnesses, Sergeant Houston and Lieutenant Jenkins, both of whom are law enforcement officers of the Division of Alcoholic Beverages. The Petitioner also offered one exhibit, which was received in evidence. The Respondent testified on his own behalf, but did not call any other witnesses. 1/

At the conclusion of the hearing the parties were allowed fourteen days within which to file their proposed recommended orders. The Petitioner filed a timely proposed recommended order containing proposed findings of fact and conclusions of law. The Respondent filed a late proposed recommended order on March 2, 1991, which has been fully considered, its tardiness notwithstanding. The findings of fact proposed by the parties are specifically addressed in the Appendix to this Recommended Order.

The two primary witnesses at the hearing were Sergeant Houston and the Respondent. They gave very different accounts of what happened in the licensed premises on July 1, 1990. In resolving those differences I have credited Sergeant Houston's version over the Respondent's version for a number of reasons, to include the fact that Sergeant Houston's version was more plausible and more consistent with other evidence. Further, Sergeant Houston appeared to be a levelheaded, reasonable person with character traits of honesty and integrity. The Respondent appeared to be otherwise.

FINDINGS OF FACT

1. Since June 27, 1990, the Respondent, Heck Prowse, has continuously held license number 23-11121, series 2-APS, issued by the Division of Alcoholic Beverages and Tobacco. That license authorizes him to sell alcoholic beverages on the business premises known as Five Boros Food Mart, Inc., located at 19817 Northwest 2nd Avenue, Miami, Dade County, Florida.

   
   

2. At approximately 4:45 p.m. on July 1, 1990, Sergeant Carol Houston entered the licensed premises described above. Sergeant Houston's purpose for visiting the licensed premises was to inspect the premises for compliance with a new cigarette floor tax and to make sure that licensees were aware of the new tax. On that day Sergeant Houston was acting in her capacity as a sworn law enforcement officer of the Division of Alcoholic Beverages and Tobacco and was in the course of performing her official duties as a sworn law enforcement officer.

   
   

3. Upon entering the licensed premises described above, Sergeant Houston approached the Respondent, who was inside the licensed premises, identified herself to the Respondent, and explained to the Respondent her reason for being there. In the course of identifying herself to the Respondent, Sergeant Houston displayed to him her law enforcement credentials which contained both a photo identification card and a badge, both of which identified her as a law enforcement officer of the Division of Alcoholic Beverages and Tobacco.

   
   

4. At Sergeant Houston's request, the Respondent counted all of his visible cigarette inventory and reported a total of 176 packages of cigarettes. Based on her experience with similar size stores, Sergeant Houston was of the opinion that the reported inventory was unusually low, and she asked to see the Respondent's invoices for cigarette purchases.

5. Shortly after the request for the invoices, the Respondent became very uncooperative. Along with trying to prevent Sergeant Houston from seeing the invoices, the Respondent began to speak to Sergeant Houston in a very vulgar and abusive manner. Once things had calmed down, Sergeant Houston again showed her credentials to the Respondent and explained to him that she was authorized by law to inspect everything in the premises. Eventually the Respondent provided the invoices. After reviewing the invoices, Sergeant Houston asked if there were any more cigarettes on the licensed premises. The Respondent replied that there were not. Thereupon, Sergeant Houston began to inspect storage cabinets on the licensed premises, but was unable to inspect one cabinet because the Respondent was standing in front of it blocking access to the cabinet. Once again the Respondent became angry and spoke to Sergeant Houston in a very vulgar and abusive manner. Sergeant Houston eventually prevailed upon the Respondent to move out of the way. Inside the cabinet that had been blocked by the Respondent, Sergeant Houston found approximately 40 additional cartons of cigarettes. At that point Sergeant Houston orally advised the Respondent that he was under arrest for interfering with the performance of her official duties. Sergeant Houston then told the Respondent to sit down, which he did, and to provide identification, which the Respondent refused to do.

   
   

6. Sergeant Houston then proceeded to call her office to report the situation and while she was talking on the telephone the Respondent attempted to leave the premises. Sergeant Houston dropped the telephone, chased after the Respondent, and put an arm around his neck to keep him from leaving the building. The Respondent thereupon shoved and hit Sergeant Houston several times, including hitting her in the chest with his fist, in an effort to get away. Once Sergeant Houston succeeded in restraining the Respondent, she returned to the telephone and advised her supervisor of her location. The supervisor, who had heard the struggle over the telephone, was concerned for Sergeant Houston's safety. The supervisor called the Metro Dade Police and asked them to send assistance to Sergeant Houston, which they did.

   
   

7. In cases involving battery on a law enforcement officer, obstruction of a law enforcement officer, or resisting arrest with violence, if the violation is committed by the licensee, it is the established policy of the Division of Alcoholic Beverages and Tobacco to revoke the license.

   
   

8. The sale of cigarettes, beer, and wine account for more than half of the sales volume at the Respondent's store on the licensed premises. Revocation of the Respondent's alcoholic beverage license would have a devastating impact on the economic viability of the Respondent's business.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Sec. 120.57(1), Fla. Stat.

   
   

10. Section 561.29, Florida Statutes, subjects an alcoholic beverage license to revocation, suspension, or the imposition of a civil penalty when the licensee violates any of the laws of the State of Florida on the licensed premises or in the scope of employment in the licensed business.

    
    

11. Section 784.07, Florida Statues, makes it illegal to intentionally touch or strike a law enforcement officer while the officer is engaged in the lawful performance of official duties.

12. Section 562.41(4), Florida Statues, makes it illegal to obstruct or hinder any authorized law enforcement officer in the execution of any power or authority vested in the officer by law.

    
    

13. Section 843.01, Florida Statutes, makes it illegal to knowingly and willfully resist, obstruct, or oppose a law enforcement officer engaged in the lawful execution of a legal duty, by either offering to do violence to, or doing violence to, the officer.

    
    

14. Section 210.10, Florida Statutes, declares that all officers and employees of the Division of Alcoholic Beverages and Tobacco shall have all the authority and power vested in officers and employees of the Division as provided by Section 561.07, Florida Statutes, with regard to enforcing the cigarette tax law.

    
    

15. Section 561.07, Florida Statutes, declares that all employees authorized by the Division shall have access to and shall have the right to inspect the premises of all licensees under the beverage law and under the cigarette tax law, now in effect or which may hereafter be reenacted, to collect taxes and remit them to the officers entitled to them, and to examine the books and records of all licensees.

1. Section 561.07, Florida Statutes, further declares that such authorized employees shall have the power of deputy sheriffs in the enforcement of the beverage law and the cigarette tax law of this state, and in the prosecution of offenders against such laws.

   
   

2. A licensee is liable for his own acts of violence, obstruction, and resistance to lawful execution of law enforcement duties. When the licensee's own acts are directed against someone the licensee knows to be a law enforcement officer of the Division of Alcoholic Beverages and Tobacco who is acting in the performance of the duties of that office, the licensee must bear the full consequences of his own wrongful actions. The Respondent argues that

revocation is too harsh a remedy because revocation would have a devastating impact on the Respondent's income. The argument is not persuasive in light of the seriousness of the violations committed by the Respondent. Mere economic considerations are an insufficient basis for excusing the Respondent from the appropriate penalty of license revocation.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the Division of Alcoholic Beverages and Tobacco issue a Final Order in this case finding that the Respondent is guilty of the violations charged in the first three counts of the Amended Notice To Show Cause and concluding that the appropriate penalty is the revocation of Respondent's license number 23-11121, series 2-APS, for the premises located at 19817 Northwest 2nd Avenue, Miami, Dade County, Florida.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 17th day of March 1992.

MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SC 278-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of March 1992.

ENDNOTES

1/ The Respondent did request that the record of the hearing be left open and that the hearing be reconvened at a later date so that he could subpoena as witnesses the police officers who arrived following the events that form the basis for the charges in this case. That request was denied for two reasons: first, because the Respondent had ample opportunity to call those witnesses at the time for which the hearing was scheduled and, second, because it does not appear that the police officers who arrived after the fact would have any information relevant to this proceeding that would be helpful to the Respondent.

APPENDIX TO RECOMMENDED ORDER

The following are my specific rulings on the proposed findings of fact submitted by all parties.

Findings proposed by Petitioner:

Paragraphs 1 and 2: Accepted.

Paragraph 3: Rejected as subordinate and unnecessary details. Paragraph 4: Accepted.

Paragraphs 5, 6, 7, 8, and 9: A distilled version of these proposals has been included in the Findings of Fact, but most details have been omitted or greatly condensed as being subordinate, unnecessary, or irrelevant.

Paragraph 10: Rejected as subordinate and unnecessary.

Paragraphs 11, 12, 13, 14, 15, and 16: A distilled version of these proposals has been included in the Findings of Fact, but most details have been omitted or greatly condensed as being subordinate, unnecessary, or irrelevant.

Paragraphs 17 and 18: Rejected as subordinate and unnecessary details. Paragraph 19: Accepted in substance.

Findings proposed by Respondent:

Paragraph 1: Accepted that Sergeant Houston arrived at about the time stated. Other details rejected as contrary to the greater weight of the evidence.

Paragraph 2: Rejected as irrelevant details.

Paragraphs 3 and 4: Rejected as contrary to the greater weight of the evidence, and as not supported by persuasive evidence.

Paragraph 5: Accepted that Respondent was arrested and that he resisted. The remainder of this paragraph is rejected as contrary to the greater weight of the evidence.

Paragraph 6. Accepted in substance with some irrelevant details omitted.

Paragraph 7: Accepted that Sergeant Houston demanded an accurate account of all cigarettes, but most other details rejected as irrelevant or as contrary to the greater weight of the evidence.

Paragraphs 8, 9, and 10: A few details are accepted, but the majority of these paragraphs is rejected as contrary to the greater weight of the evidence.

Paragraphs 11, 12, and 13: Rejected as irrelevant details. COPIES FURNISHED:

Monica Atkins White, Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

Mr. Heck Prowse

Five Boros Food Mart

19817 Northwest 2nd Avenue Miami, Florida 33169

Richard W. Scully, Director Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32399-1000

Janet E. Ferris, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000

Donald D. Conn, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-006604

Orders for Case No: 90-006604