STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 94-5313

)

QASEM SHAHINDA d/b/a )

ISMAEL & SON SUPERMARKET, )

)

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 February 21, 1995, in Miami, Florida.

APPEARANCES

For Petitioner: Miguel Oxamendi, Esquire

Department of Business

and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-1007 For Respondent: No appearance at hearing.

STATEMENT OF THE ISSUE

At issue in this proceeding is whether respondent committed the offenses set forth in the administrative action, as amended, and, if so, what disciplinary action should be imposed.

PRELIMINARY STATEMENT

By a seven-count administrative action dated August 9, 1994, as amended by order of February 16, 1995, petitioner charged that respondent, the holder of an alcoholic beverage license, did, on seven separate occasions, individually or through her agents or employees "illegally traffic in and fraudulently possess

1. Food Coupons," in a manner contrary to Sections 561.29 and 409.325(2), Florida Statutes, and Title 7, Section 2024(b)(1), United States Code.

   
   

   At hearing, petitioner called Kelvin Davis, William H. Bethel, and Mary Pierce as witnesses, but offered no exhibits. Neither the respondent nor anyone on her behalf appeared at hearing, and no evidence was offered on her behalf.

   The transcript of hearing was not ordered. Consequently, the parties were accorded ten days from the date of hearing within which to file proposed recommended orders. Petitioner elected to file such a proposal, and the proposed findings of fact contained therein are addressed in the appendix to this recommended order.

   
   

   FINDINGS OF FACT

   
   

   1. At all times material herein, respondent, Qasem Shahinda d/b/a Ismael and Son Supermarket, held alcoholic beverage license number 23-10720, series 2- APS, for the premises located at 14528 Lincoln Boulevard, Miami, Florida.

      
      

   2. At all times material hereto, respondent was authorized to receive

U.S.D.A. food stamps in exchange for food items, and had received training prior to such authorization from the United States Department of Agriculture as to, inter alia, items of merchandise which could or could not be exchanged for

1. food stamps.

   
   

   1. In December 1992, U.S.D.A. Investigator William Bethel (Bethel) and

      U.S.D.A. Investigative Aide Mary Pierce (Pierce) commenced an investigation of the licensed premises to ascertain whether nor not persons associated with the premises were complying with State and Federal law regarding the acceptance of

      U.S.D.A. food stamps. In each instance, Bethel accompanied Pierce to the premises and provided her with the U.S.D.A. food stamps used in the investigation.

      
      

   2. On December 10, 1992, Pierce entered the license premises with $30.00 in U.S.D.A. food stamps. At or about 1:20 p.m. that date, a female clerk on the premises accepted food stamps in exchange for merchandise which, in addition to eligible items, included the following ineligible items: a six-pack of Old Milwaukee Beer, one pack of Winston cigarettes, one pack of Newport cigarettes, and one Massengill disposable douche.

      
      

   3. On April 14, 1993, Pierce entered the licensed premises with $65.00 in

      U.S.D.A. food stamps. At or about 12:30 p.m., another female clerk accepted

      $32.79 worth of food stamps in exchange for merchandise which, in addition to eligible items, included the following ineligible items: a six-pack of Old Milwaukee Beer and one pack of Newport cigarettes. 1/

      
      

   4. On April 14, 1993, Investigator Bethel entered the licensed premises with $45.00 in U.S.D.A. food stamps in furtherance of the above described investigation. At or about 12:35 p.m., the same female clerk accepted $38.97 worth of food stamps in exchange for merchandise which, in addition to eligible items, included the following ineligible items: a six-pack of Old Milwaukee Beer, one box of Cheer detergent, and one box of Clorox dry bleach. 2/

      
      

   5. On April 28, 1993, Pierce entered the licensed premises with $55.00 in

      U.S.D.A. food stamps in furtherance of the above described investigation. At or about 11:40 a.m., the same female clerk she had encountered on April 14, 1993, accepted $53.85 worth of food stamps in exchange for merchandise which, in addition to eligible items, included the following ineligible items: a six-pack of Old Milwaukee Beer, one pack of Winston cigarettes, one pack of Newport cigarettes, one roll of Reynolds Foil, and one box of Hefty kitchen bags. 3/

   6. Pierce returned to the premises on April 28, 1993, with $65.00 in

      U.S.D.A. food stamps. At or about 11:55 a.m., Pierce met with the same female clerk and sold her the $65.00 in U.S.D.A. food stamps for $25.00 in United States currency. 4/

      
      

   7. On July 19, 1993, Pierce entered the licensed premises with $140 in

      U.S.D.A. food stamps in furtherance of the above described investigation. At or about 12:45 p.m., a male clerk accepted food stamps in exchange for merchandise which, in addition to eligible items, included an ineligible pack of Winston cigarettes. Moreover, the same male clerk purchased from Pierce $130.00 in

      U.S.D.A. food stamps (two full $65.00 books) for $70.00 in United States currency.

      
      

      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. At issue in these proceedings is whether the conduct of respondent's agents, servants or employees violated the provisions of Section 561.29, Florida Statutes. In cases of this nature, the petitioner bears the burden of proving its charges by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

      
      

   10. 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.

             
             

   11. Here, petitioner charged that respondent, individually or through her agents or employees, violated the provisions of Section 409.325(2), Florida Statutes, and Title 7, U.S.C., Section 2024(b)(1), and therefore Section 561.29(1)(a), Florida Statutes. Section 409.325(2), Florida Statutes, and Title 7, U.S.C., Section 2024(b)(1) provide that it is a violation of State and Federal law to knowingly use, transfer, acquire, alter or possess food coupons contrary to the provisions of such laws.

       
       

   12. In this case, the proof supports the conclusion that respondent knew that the purchase and possession of food stamps or the exchange of food stamps for non-food items was contrary to law. Such conclusion is supported by the fact that respondent was duly trained as to what merchandise could and could not be exchanged for food stamps before she was authorized to accept them. See, e.g., Liparota v. United States, 471 U.S. 419, 85 L.Ed. 434, 105 S.Ct. 2084 (1985). Moreover, given the repeated, open, and routine manner in which the food stamps were purchased or exchanged in a manner unauthorized by law, it is reasonable to infer that respondent either fostered, condoned or negligently overlooked such violations of law. Lash, Inc. v. Department of Business Regulation, 411 So.2d 276 (Fla. 3d DCA 1982), and Pauline v. Lee, 147 So.2d 359

       (Fla. 2d DCA 1962), cert. denied, 156 So.2d 389 (Fla. 1963). Accordingly, petitioner has demonstrated by clear and convincing evidence that respondent violated the provisions of Section 409.325(2), Florida Statutes, and Title 7, U.S.C., Section 2024(b)(1), and therefore Section 561.29(1)(a), Florida Statutes.

       
       

   13. Rule 61A-2.022, Florida Administrative Code, contains petitioner's penalty guidelines. Here, considering that the proof demonstrates that U.S.D.A. food stamps were openly and routinely exchanged for ineligible items and discounted for cash, an appropriate penalty is a $2,000.00 civil penalty.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered finding respondent guilty of the

aforesaid violations and assessing a $2,000.00 civil penalty.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 8th day of March 1995.

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 8th day of March 1995.

ENDNOTES

1/ At hearing, proof was offered that this clerk was later identified by a person other than those who testified at hearing as being the respondent. Such testimony was hearsay, and cannot support a finding of fact regarding the identity of the clerk.

2/ Ibid.

3/ Ibid.

4/ Ibid.

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

1. Adopted in paragraph 1.

2. Adopted in paragraph 3.

3. Adopted in paragraph 4.

4. Addressed in paragraph 5 and endnote 1.

5. Addressed in paragraph 6 and endnote 2.

6. Addressed in paragraph 7 and endnote 3.

7. Addressed in paragraph 8 and endote 4.

8. Addressed in paragraph 9.

COPIES FURNISHED:

Miguel Oxamendi, Esquire Department of Business

and Professional Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Qasem Shahinda

Ismael & Son Supermarket 14528 Lincoln Boulevard

Miami, Florida 33176

Itzhak Mikelstein Night Eye Security Post Office Box 640069

Miami, Florida 33164-69

Capt. Thomas P. Wheeler Division of Alcoholic Beverages

and Tobacco

Augusta Building, Suite 100 8685 N.W. 53rd Terrace Miami, Florida 33166

John J. Harris, Director Department of Business

and Professional Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jack McRay General Counsel Northwood Centre

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: 94-005313

Orders for Case No: 94-005313