STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2920

)

)

MARGARITA B. SANTOS, d/b/a )

SUPER DISCOUNT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on August 18, 1992, in Miami, Florida.

APPEARANCES

For Petitioner: Miguel Oxamendi, Esquire

Assistant General Counsel Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1007

For Respondent: Margarita B. Santos, pro se Ray Robles

8191 N.W. 27th Avenue Miami, Florida 33147

STATEMENT OF THE ISSUES

At issue in this proceeding is whether respondent committed the offenses set forth in the notice to show cause and, if so, what disciplinary action should be imposed.

PRELIMINARY STATEMENT

By a twelve-count notice to show cause dated February 10, 1992, petitioner charged that respondent, the holder of an alcoholic beverage license, either personally or through her agent, servant or employee, violated the provisions of Section 812.019(1), Florida Statutes, by trafficking or endeavoring to traffic in cartons of cigarettes she knew or should have known were stolen (Counts 1, 2,

3 and 6); violated the provisions of Section 561.29, Florida Statutes, by purchasing U.S.D.A. Food Coupon Books in a manner not authorized by federal law (Counts 4, 7 and 9); violated the provisions of Section 812.019(1), Florida

Statutes, by trafficking or endeavoring to traffic in U.S.D.A. Food Coupon Books she knew or should have known were stolen (Count 5, 8 and 10); violated the provisions of Section 561.29, Florida Statutes, by possessing two U.S.D.A. Food Coupon Books in a manner not authorized by federal law (Count 11); and, violated the provisions of Section 562.02, Florida Statutes, by possessing at the licensed premises alcoholic beverages not authorized by law to be sold by the licensee (Count 12).

At hearing, petitioner called as witnesses: Dennis Wilson, William Hladky, Carol Bennett, Kelvin Davis, and Margarita Santos. Petitioner's exhibits 1 and

2 were received into evidence. Respondent testified on her own behalf, but offered no exhibits.

The transcript of hearing was not ordered and, consequently, the parties were granted leave until August 28, 1992, to file proposed findings of fact. Petitioner elected to file such proposals, and they have been adopted in substance in this recommended order.

FINDINGS OF FACT

1. At all times pertinent hereto, respondent, Margarita B. Santos, held alcoholic beverage license number 23-09660, series 2-APS, for the premises known as Super Discount (the "premises"), located at 8191 N.W. 27th Avenue, Miami, Dade County, Florida. Neither respondent nor the premises were, at the time, authorized to receive or possess U.S.D.A. Food Coupon Books.

   
   

2. On or about November 26, 1991, Detective William Hladky of the Metro- Dade Police Department, as well as other officers associated with such agency, began an undercover investigation of the premises. Such investigation was predicated on information Detective Hladky had received from a confidential informant which indicated that persons associated with Super Discount were dealing in stolen property.

   
   

3. On November 26 and 27, 1991, and December 4 and 10, 1991, Detective Hladky gave cartons of Florida tax stamped cigarettes, which he had secured from a Winn Dixie Supermarket, to Detective Marvin Baker, who was operating undercover, for the purpose of attempting to sell such cigarettes to persons inside the licensed premises as ostensibly stolen property. Additionally, on December 4 and 10, 1991, U.S.D.A. Special Agent Carol Bennett provided Detective Baker with U.S.D.A Food Coupon Books and on December 19, 1991, provided a Detective Maltbia-Williams with U.S.D.A. Food Coupon Books for the same purpose.

   
   

4. At hearing, neither Detective Baker nor Detective Maltbia-Williams appeared, and no competent proof was offered to demonstrate what occurred, if anything, upon the premises with regard to such ostensibly stolen property. Accordingly, petitioner failed to demonstrate, as alleged in the notice to show cause, that respondent either personally or through her agent, servant or employee violated the provisions of Section 812.019(1), Florida Statutes, by trafficking or endeavoring to traffic in cartons of cigarettes she knew or should have known were stolen (Counts 1, 2, 3 and 6); violated the provisions of Section 561.29, Florida Statutes, by purchasing U.S.D.A. Food Coupon Books in a manner not authorized by law (Counts 4, 7 and 9); and violated the provisions of Section 812.019(1), Florida Statutes, by trafficking or endeavoring to traffic in U.S.D.A. Food Coupon Books she knew or should have known were stolen (Counts 5, 8 and 10). 1/

5. On December 30, 1991, petitioner's Special Agent Dennis Wilson, together with Detective Hladky, entered the premises to arrest respondent and her employees, as a consequence of Detective Hladky's investigation. Incident to such entry, Special Agent Wilson conducted an inspection of the premises and located six one-liter bottles of 86 proof Dawson Deluxe Blended Scotch Whiskey in the premises' stock room. According to respondent, such whiskey was intended as Christmas gifts for the mail carrier and other persons who provided services to the premises, and not for sale at the premises.

   
   

6. Incident to respondent's arrest, Special Agent Wilson searched the contents of respondent's purse, and discovered two U.S.D.A. Food Coupon Books, with a value of $50.00 each, whose serial numbers matched those entrusted to Detective Maltbia-Williams on December 19, 1991. According to respondent, one of her employees gave her the books, she proposed to use the coupons to purchase food for a party, and she did not realize that possession of the coupons was illegal. Apart from respondent's testimony, there is no proof as to the manner in which she acquired the coupons or her intended use of the coupons. 2/

   
   

7. In cases involving possession of beverages not permitted to be sold under the license, it is petitioner's established policy to impose a $500.00 fine or 10-day suspension.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes.

   
   

9. Pertinent to this case, Section 561.29, Florida Statutes, provides:

   
   

   1. The division is given full power and authority to revoke or suspend the license of any person holding a license under the Beverage Law, when it is determined or found by the division upon sufficient cause appearing of:

      1. Violation by the licensee or his or its agents, officers, servants, or employees, on the licensed premises . . . of any of the

         laws of this state or of the United States . . .

         
         

         * * *

         
         

         (3) The division may impose a civil penalty against a licensee for any violation mentioned in the Beverage Law . . . not to exceed $1,000 for violations arising out of a single transaction. If the licensee fails to pay the civil penalty, his license shall be suspended for such period of time as the division may specify. . . .

         
         

10. Here, petitioner charged that respondent violated the provisions of Section 812.019(1), Florida Statutes, and therefore Section 561.29(1)(a), Florida Statutes, by trafficking or endeavoring to traffic in cartons of cigarettes she knew or should have known were stolen (Counts 1, 2, 3 and 6) and by trafficking or endeavoring to traffic in U.S.D.A. Food Coupon Books she knew

    or should have known were stolen (Counts 5, 8 and 10). The proof failed, however, to demonstrate that respondent purchased or sold any property, received any such property under circumstances where she knew or reasonably should have known that it was stolen, or that she intended to otherwise dispose of any such property for other than her personal use. Under such circumstances, petitioner failed to establish that respondent violated the provisions of Section 812.019(1), Florida Statutes. See: State v. Camp, 17 FLW S230 (Fla. 1992); Grimes v. State, 477 So.2d 649 (Fla. 1st DCA 1985); and Lancaster v. State, 369 So.2d 687 (Fla. 1st DCA 1979).

    
    

11. Pertinent to the charges that respondent violated the provisions of Section 561.29(1)(a), Florida Statutes, by purchasing (Counts 4, 7 and 9) and possessing (Count 11) U.S.D.A Food Coupon Books in a manner not authorized by federal law is Title 7, U.S.C., Section 2024(b)(1). That section provides that it is a violation of Federal Law to knowingly use, transfer, acquire, alter or possess food coupons contrary to the provisions of such chapter. Accordingly, to demonstrate a violation of Title 7, U.S.C., Section 2024(b)(1), it was incumbent upon petitioner to demonstrate not only purchase or possession, but that respondent knew that purchase or possession of food stamps was in a manner unauthorized by law. Liparota v. United States, 471 U.S. 419, 85 L.Ed. 2d 434,

    105 S.Ct. 2084 (1985). Here, petitioner failed to demonstrate that respondent purchased food stamps on December 4, 10, and 19, 1991, as alleged in Counts 4, 7 and 9, and further failed to demonstrate that respondent knew that possession of the two books of stamps she was shown to have possessed on December 30, 1991 (Count 11), was in a manner unauthorized by law.

    
    

12. Notwithstanding petitioner's failure to sustain the charges contained within Counts 1 through 11 of its notice to show cause, petitioner has demonstrated by clear and convincing evidence that respondent violated the provisions of Section 562.02, Florida Statutes, and therefore Section 561.29(1)(a), Florida Statutes, as alleged in Count 12. Pertinent to this Count, Section 562.02 provides:

It is unlawful for a licensee under the Beverage Law or his agent to have in his possession, or permit anyone else to have in his possession, at or in the place of business of such licensee, alcoholic beverages not authorized by law to be sold by such licensee.

Respondent, the holder of a 2-APS license, was only authorized by law to sell beer and wine products. Consequently, possession of the six bottles of scotch whiskey on the licensed premises was unlawful.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing Counts 1 through 11

of the notice to show cause, finding respondent guilty as charged in Count 12 of the notice to show cause, and assessing a civil penalty in the sum of $500.00 against respondent's license.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of September 1992.

WILLIAM J. KENDRICK

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 3rd day of September 1992.

ENDNOTES

1/ Refreshingly, petitioner's counsel concedes in his proposed recommended order the petitioner's failure to sustain its burden of proof as to Counts 1 through 10.

2/ Each of the Food Coupon Books was apparently marked "non-transferable" but respondent did not comprehend such restriction because of her inability to read English.

COPIES FURNISHED:

Miguel Oxamendi, Esquire Assistant General Counsel Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1007

Margarita B. Santos, pro se Ray Robles

8191 N.W. 27th Avenue Miami, Florida 33147

Richard W. Scully, Director Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1007

Donald D. Conn General Counsel

Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1007

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: 92-002920

Orders for Case No: 92-002920