STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

vs. ) CASE NO. 92-4808

)

PARA BOWERS d/b/a TIFFANY & )

SUZY Q'S FUN AND MUNCH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Joyous D. Parrish, held a formal hearing in the above-styled case on December 1, 1992, in Orlando, Florida.

APPEARANCES

For Petitioner: Thomas A. Klein

Chief Attorney

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

For Respondent: Para Bowers, pro se

104 East 18th Street Apopka, Florida 32703

STATEMENT OF THE ISSUES

The central issue in this case is whether Respondent is guilty of the violations alleged in the notice to show cause dated June 16, 1992; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on June 16, 1992, when the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Department) issued a notice to show cause-notice of informal conference that alleged the Respondent, the holder of alcoholic beverages and tobacco license/permit number 58-03205, had illegally purchased foodstamps in a manner not authorized by law.

On July 8, 1992, the Respondent executed a request for hearing that disputed that she had illegally purchased foodstamps, and affirmatively stated that no foodstamps were illegally purchased by her or anyone acting in her behalf. On August 5, 1992, the matter was forwarded to the Division of Administrative Hearings for formal proceedings.

At the hearing, the Department presented the testimony of Richard S. Hurlburt, a special agent employed by the Department; David R. West, Jr., an agent employed by the Florida Department of Law Enforcement (FDLE); and Ella Mae Davis, a confidential informant employed by FDLE.

A transcript of the proceedings has not been filed. The Petitioner submitted a proposed recommended order which has been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix.

FINDINGS OF FACT

1. The Respondent owns an alcoholic beverage license, license number 5803205, for a business known as Tiffany & Suzy Q's Fun and Munch located in Apopka, Florida.

   
   

2. Mr. Bowers, Respondent's husband, does not own the subject business or license, and may not as he has prior felony convictions within the last past five years that preclude his eligibility to own or hold an alcoholic beverage license.

   
   

3. At all times material to the allegations of this case, Mr. Bowers was on the licensed premises acting as the manager or other person in charge of the business activities.

   
   

4. Acting on information from a confidential source, the FDLE commenced an investigation of several vendors rumored to be involved in illegal foodstamp activity. FDLE retained several confidential informants (CI) to offer foodstamps for sale at substantially reduced prices.

   
   

5. One of the confidential sources, Ella Mae Davis, posed as the seller at Respondent's licensed store. Acting in concert with another CI, Ms. Davis went to the store and offered foodstamps for sale to Respondent's husband. Ms. Davis alleged that the foodstamps had been stolen by her boyfriend, and that she wanted to sell them. Her instructions were to make Mr. Bowers (or other person at the store if there had been another) aware that the stamps were illegal, and to determine if a sale would be possible.

   
   

6. On the first occasion, Mr. Bowers was receptive to the offer made by Ms. Davis and the CI. Ms. Davis observed Mr. Bowers go into a backroom at the store with the other CI who had possession of the foodstamps. When the CI came out, and the two women left the premises, the CI had the money received in exchange for the foodstamps.

   
   

7. On a second visit to the store, Ms. Davis met Mr. Bowers who introduced her to a second male. Ms. Davis observed a second exchange of foodstamps for cash with the second male. This transaction took place at the licensed premises.

   
   

8. During each of the transactions at the licensed premises, Ms. Davis observed Mr. Bowers' physical proximity to the exchange of foodstamps for cash. On each occasion the rate of exchange for the foodstamps was approximately fifty percent of the face value of the stamps.

   
   

9. The Respondent was not on the licensed premises on either occasion when foodstamps were exchanged by Ms. Davis or her partner CI.

   CONCLUSIONS OF LAW

   
   

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

    
    

11. Section 561.29(1), Florida Statutes, provides, in pertinent part:

    
    

    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, 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 the United States. . .

       
       

12. Section 562.13(3)(a), Florida Statutes, provides, in part:

    
    

    It is unlawful for any vendor licensed under the beverage law to employ as a manager or person in charge or as a bartender any person:

    * * *

    3. Who has, in the last past 5 years, been convicted of any felony in this state, any other state, or the United States.

    * * *

    
    

13. Under federal law, it is unlawful to exchange foodstamps for cash that is less than the face value of the stamps or to exchange them in the manner as set forth in the facts of this case.

    
    

14. The Respondent's husband, who was the person in charge at the licensed premises when each illegal transaction occurred, permitted an unlawful activity to be fostered on the licensed premises.

    
    

15. Respondent either by neglect or intent permitted her husband to manage or operate the licensed premises during her absence.

    
    

16. The Department has established that the Respondent, either by intent or neglect, allowed an unlawful activity to occur on the licensed premises.

    
    

17. Further, the Respondent, either by intent or neglect, allowed a person not permitted by law to manage the store to control or manage the licensed premises. Respondent has offered no credible explanation for her acts or omissions.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a final order revoking Respondent's beverage license.

DONE AND RECOMMENDED this 21st day of January, 1993, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

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 21st day of January, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4808

Rulings on the proposed findings of fact submitted by the Petitioner:

1. Paragraphs 1 through 9 are accepted.

Rulings on the proposed findings of fact submitted by the Respondent: None submitted.

COPIES FURNISHED:

Thomas A. Klein Chief Attorney

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

Para Bowers, pro se

104 East 18th Street Apopka, Florida 32703

Richard W. Scully, Director Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

Donald D. Conn General Counsel

Department of Business Regulation 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: 92-004808

Orders for Case No: 92-004808