STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5987

) WORKMAN, INC., d/b/a COASTAL MART, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on January 18, 1994, in Tampa, Florida.

APPEARANCES

For Petitioner: Richard D. Courtemanche, Jr.

Assistant General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

For Respondent: Barbara E. Glover Moore, Esquire

121 North Collins Street, Suite 203 Post Office Box 1380

Tampa, Florida 33601 STATEMENT OF THE ISSUE

Whether or not Respondent, or its agents, sold cigarettes to underage persons on May 20 and July 8, 1993.

PRELIMINARY STATEMENT

By its two count Administrative Complaint filed herein signed July 12, 1993, Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, alleged that Respondent, and/or its agent, sold cigarettes to a person under the age of 18 contrary to Section 859.06, Florida Statutes. Respondent filed an answer disputing the allegations and requested a Formal Hearing. At the onset of the hearing, the parties entered into a factual stipulation, the essence of which is that Respondent admits that it is the Respondent set forth in the Administrative Complaint filed herein; that Respondent's address is 9931 North Florida Avenue, Tampa, Florida, and that Respondent's license number is 39-02924-series 1-APS.

Petitioner introduced five exhibits which were received in evidence and Respondent introduced two exhibits which were also received in evidence at the hearing.

Petitioner presented the testimony of Joseph A. Maggio, a Special Agent, employed in Petitioner's Tampa office for twenty-four years and nine months; Kimberly Siebel and Stephanie Haley, investigative aides, employed by Petitioner. Respondent presented the testimony of Angela Schulte and Raymond Daoud.

Following the conclusion of Petitioner's case-in-chief, Respondent moved to dismiss Count I of the Administrative Complaint, because it references the date of May 11, 1993, and all of the testimony related to the date of May 20, 1993.

Petitioner's motion was taken under advisement at the hearing. After reviewing all of the documentary evidence and testimony herein, Respondent's Motion to Dismiss Count I is DENIED inasmuch as all of the documentary evidence, with the exception of the Administrative Complaint, related to the date May 20, 1993, and all of the testimony adduced at the hearing, including that of Respondent's defense, related to the date of May 20, 1993. It was concluded that Respondent was adequately noticed of the allegations which were filed and notice pleadings is all that is required in administrative actions.

The parties filed proposed recommended orders which were considered in preparation of this Recommend Order. Proposed Findings of Fact which are not incorporated herein are the subject of specific rulings in an Appendix. Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record complied herein, I make the following relevant:

FINDINGS OF FACT

1. Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, is the regulatory agency charged with enforcing beverage and cigarette tax laws. As part of its duties, Petitioner investigate the sales of cigarettes to minors (under age persons).

   
   

2. Respondent, Workman, Inc., d/b/a Coastal Mart, is the holder of alcoholic beverage license number 39-02924, series 1-APS, and retail tobacco products permit number 39-04440.

   
   

3. Respondent's licensed premises is located at 9931 North Florida Avenue, Tampa, Florida.

   
   

4. Raymond Daoud is Respondent's sole stockholder and is a corporate officer.

   
   

5. Pursuant to an anonymous complaint received by Petitioner during the spring of 1993, Special Agent Joseph A. Maggio directed investigative aide Kimberly Siebel to enter the premises of Coastal Mart and attempt to purchase cigarettes.

   
   

6. Petitioner, during times material, utilized the services of investigative aides Kimberly Siebel and Stephanie Haley, whose birth dates are September 20, 1975, and January 24, 1978, respectively. Both aides were under the age of 18 during the spring of 1993.

7. Investigative aides Siebel and Haley, are trained by Petitioner, when conducting investigations for the purchase of either beer or cigarettes, to enter premises and to truthfully tell their age when requested. They also provide proper identification to establish their age if requested to do so by the clerk when they are attempting to purchase beer or cigarettes. This procedure was used in this case by investigative aides Siebel and Haley when they purchased cigarettes from Respondent on May 20 and July 8, 1993.

   
   

8. When investigative aide Siebel purchased cigarettes from Respondent on May 20, 1993, she had previously worked as an undercover operative for Petitioner approximately 30 times.

   
   

9. On May 20, 1993, Siebel entered the premises of Respondent with Special Agent Maggio at approximately 9:25 p.m.

   
   

10. Investigative aide Siebel approached the counter and ordered a pack of Marlboro Light cigarettes from the clerk who was later identified as Angela Schulte, an employee of Respondent. Ms. Siebel received a pack of Marlboro Light cigarettes as requested from Schulte without being asked for identification. She paid for the cigarettes and exited the store.

    
    

11. Special Agent Maggio observed the purchase of cigarettes by Siebel from his position next in line behind her.

    
    

12. When Siebel purchased the cigarettes from Schulte on May 20, 1993, she and Special Agent Maggio observed Respondent, Daoud, behind the counter when they entered the licensed premises. When Siebel and Maggio exited the premises, Siebel gave the cigarettes to Maggio. Maggio placed the cigarettes in a plastic bag and Siebel signed them. Maggio then sealed and placed them in the locked trunk of his vehicle until they were deposited in Petitioner's evidence file the following day.

    
    

13. Approximately ten minutes after Siebel purchased the cigarettes and turned them over to Maggio, he reentered the premises, identified himself to Schulte, and advised her that she was under arrest for the sale of cigarettes to an under age person. Daoud was still inside the premises near the front counter.

    
    

14. Special Agent Fisher, who is no longer employed by Petitioner, accompanied Special Agent Maggio inside the premises. Fisher completed a letter of warning and Daoud signed the warning. Fisher gave Daoud a copy of the warning as they left.

    
    

15. On July 8, 1993, Maggio again directed investigative aide Stephanie Haley to enter Respondent's premises to attempt to purchase cigarettes.

    
    

16. On July 8, 1993, investigative aide Haley was fifteen years old. Haley had on her person a Florida Drivers License showing her birthday to be January 24, 1978.

    
    

17. On July 8, 1993, investigative aide Haley had previously acted as an undercover operative for Petitioner approximately 20 times.

    
    

18. On July 8, 1993, Haley entered the premises of Respondent and approached the counter. She ordered a pack of Marlboro Light cigarettes from the clerk, who was later identified as Raymond Daoud. Daoud asked Haley for identification whereupon she presented her Florida Drivers License. Daoud

    examined the license and completed the transaction. Haley exited the premises and turned over the cigarettes purchased to Special Agent Maggio. Special Agents Maggio and Bock witnessed the transaction from a vantage point outside the premises.

    
    

19. Maggio and Special Agent Bock then entered the premises of Coastal Mart and Bock identified himself and placed Daoud under arrest for the sale of cigarettes to an underage person.

    
    

20. Daoud complained that he had been "setup" and that he remembered the girl, "thought she was young," and asked her for identification. Daoud observed Haley's license and thought that it had eighteen years of age on it. Special Agent Bock reminded Daoud that the license did not have an age on it. Daoud insisted that he thought the license had the date 1979 which would, of course, make investigative aide Haley, fourteen when she was, in fact, fifteen at the time.

    
    

21. Petitioner has a policy of not letting undercover operatives reenter premises to allow licensed vendors to review items from undercover operatives such as their identification cards, etc., so as not to jeopardize them in future operations and for their own personal safety. Petitioner explained to Respondent that he could examine the identifying card (license) either during the hearing or in court.

    
    

22. Respondent suspended Schulte for one week without pay for selling cigarettes to a minor. Respondent also verbally warned Schulte for selling cigarettes to a minor and reminded her that it was against company policy to do so. Schulte recalled that Respondent was "extremely mad" about the incident.

    
    

23. Respondent would not knowingly sell cigarettes or alcoholic beverages to a minor. Respondent has operated his business for approximately three years, and this is the first infraction that he has received for the sale of beer or cigarettes to a minor.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

    
    

25. The authority of the Petitioner is derived from Chapter 561, Florida Statutes.

    
    

26. Section 561.29(1)(a), Florida Statutes, subjects an alcoholic beverage licensee to suspension or revocation for beverage violations by the licensee or his agents, officers, servants, or employees.

    
    

27. Section 561.29(3), Florida Statutes, authorizes the Division to impose a civil penalty against a licensee, not to exceed $1,000.00, for each violation of the beverage law.

    
    

28. Section 859.06(1), Florida Statutes, makes it unlawful to sell, deliver, barter, furnish, or give directly or indirectly, to any person who is under 18 years of age, any cigarette or other tobacco product or cigarette wrapper.

29. Petitioner established that Respondent and/or his agent, Schulte, sold cigarettes to minors Siebel and Haley on May 20, and July 8, 1993, as alleged in the Administrative Complaint filed herein. At the time of these sales, both Siebel and Haley were under the age of 18.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

Respondent's alcoholic beverage license number 39-02924, series #1-APS, be assessed a $500.00 civil penalty for each count for a total civil penalty of

$1,000.00. 1/

RECOMMENDED in Tallahassee, Leon County, Florida, this 4th day of April, 1994.

JAMES E. BRADWELL

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 4th day of April, 1994.

ENDNOTES

1/ This recommendation is in keeping with the Department's guidelines and the mitigating evidence offered by Respondent to the effect that he (Daoud) mistakenly sold the cigarettes to investigate aide Haley, and that its agent, Schulte, was suspended without pay for a period of one week for her sale to Siebel.

2/ Petitioner's Proposed Findings of Fact are substantially adopted and incorporated in the Recommended Order.

APPENDIX

IN CASE NO. 93-5987

Rulings on Petitioner's proposed findings of fact: 2/

Paragraph 17 rejected, as being a recitation of testimony and subordinate. Rulings on Respondent's proposed findings of fact:

Paragraph 1, adopted as modified, paragraphs 2 and 4, Recommended Order.

Paragraph 2, rejected, contrary to the greater weight of evidence and based on the ruling denying Respondent's Motion to Dismiss Count I as is fully set

forth in paragraph 3, of the Preliminary Statement in the Recommended Order. Also, see paragraphs 8-14, Recommended Order.

Paragraph 3, rejected, contrary to the greater weight of evidence, paragraphs 16-20, Recommended Order.

Paragraph 4, rejected contrary to the greater weight of evidence, paragraphs 20 and 21, Recommended Order.

Paragraph 5, rejected, irrelevant and subordinate. Paragraph 6, rejected, contrary to the greater weight of evidence, paragraph 14, Recommended Order.

Paragraph 7, adopted as modified, paragraphs 22 and 23, Recommended Order.

COPIES FURNISHED:

Richard D. Courtemanche, Jr. Assistant General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Barbara E. Glover Moore, Esquire

121 North Collins Street Suite 203

Post Office Box 1380 Tampa, Florida 33601

Jack McRay, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

John J. Harris Acting Director

Division of Alcoholic Beverages And Tobacco

1940 North Monroe Street Tallahassee, Florida 32399-0792

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: 93-005987

Orders for Case No: 93-005987