STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

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

)

Petitioner, )

)

vs. ) CASE NO. 94-5982

) JABAL, INC., d/b/a GUS FOOD STORE, )

)

Respondent. )

)

)

RECOMMENDED ORDER

Pursuant to the parties' stipulation, formal hearing in the above-styled case was waived, and the case was submitted to the Hearing Officer, William J. Kendrick, for resolution based on the parties' stipulation.

STATEMENT OF THE ISSUE

At issue is the appropriate penalty to be imposed for respondent's violation of the provisions of Section 893.13, Florida Statutes.

PRELIMINARY STATEMENT

By administrative action dated December 7, 1993, petitioner charged respondent with three counts (Counts 1, 2 and 3) of illegally trafficking in and fraudulently possessing U.S.D.A. Food Coupons contrary to Section 561.29, Florida Statutes, and Title 7, Section 2024(b)(1), United States Code, and one count (Count 4) of unlawful possession of marijuana, contrary to Section 893.13, Florida Statutes. In response, respondent filed a timely request for hearing disputing the allegations set forth in the administrative action, and on October 11, 1994, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

By notice dated November 18, 1994, a formal hearing was scheduled for January 13, 1995; however, prior to hearing, the parties agreed to waive formal hearing and to submit the matter to the Hearing Officer for resolution based on the parties' stipulation. Such stipulation, duly filed January 13, 1995, petitioner dismissed Counts 1, 2 and 3 of the administrative action, and respondent admitted the violation contained in Count 4 of the administrative action, but offered certain matters in mitigation of the penalty. The findings of fact which follow are based on the parties' stipulated facts and respondent's "mitigating factors" offered in support of its quest for a reduced penalty from that established by petitioner's penalty guidelines.

FINDINGS OF FACT

The offense

1. At all times pertinent hereto, respondent, Jabal, Inc. d/b/a Gus Food Store, held alcoholic beverage license number 23-1219, series 2-APS, for the premises located at 1490 N.W. 71st Street, Miami, Florida. Ghazi Farraj is the president and owner of respondent.

   
   

2. On or about December 3, 1993, respondent, through its president and owner Ghazi Farraj, did unlawfully possess marijuana, specifically two marijuana cigarettes in a cigarette pack on his person while on the licensed premises.

   
   

   Mitigation

   
   

3. Respondent submits the following information to be considered as "mitigating factors" in assessing the appropriate penalty to be imposed for its violation of the beverage laws:

   
   

   1. The Defendant Ghazi Farraj, entered a No Contest Plea on March 28th, 1994 before the Honorable Judge Leesfield to the charge of the possession of marijuana; to wit two marijuana cigarettes's [sic] and was found Quilty [sic] of said charge.

   2. The Respondent Ghazi Farraj, is a married man who has six children ranging in years as follows: eight thru nineteen who are living with the Respondent Ghazi Farraj, here in Miami, Dade County, Florida and he's the sole provider of his children and his wife.

   3. The Respondent Ghazi Farraj, here in [sic] has no prior Criminal Record prior to the incident described in Paragraph A.

   4. The Respondent Ghazi Farraj, fully recognizes the errors of his ways as stated in Paragraph A and he no longer will participate or get involved in any Criminal Act or Violation of the Department of Business and Professional Regulation, Division of Alcoholic Beverages And Tobacco Rules.

   5. The Respondent Ghazi Farraj, is a United States Citizen in good standing and if this Board suspends his beverage license it would not only put him out of business but will deprive the Respondent Ghazi Farraj, to fully support his family that was stated in Paragraph A.

      
      

      CONCLUSIONS OF LAW

      
      

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

   
   

5. According to Section 561.29, Florida Statutes:

   
   

   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 license premises, or elsewhere while in the scope of employment 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, or any rule issued pursuant

   thereto, 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. The funds so collected as civil penalties shall be deposited in the state General Revenue Fund.

   * * *

   (5) The division may suspend the imposition

   of any penalty conditioned upon terms the division should in its discretion deem appropriate.

   
   

6. Pursuant to Section 893.13, Florida Statutes, it is unlawful for any person to be in actual or constructive possession of cannabis (commonly knows as marijuana). Where, as here, the offense is possession of not more than 20 grams, the person is guilty of a misdemeanor of the first degree and subject to a term of imprisonment not exceeding one (1) year and/or a fine not exceeding

   $1,000. Sections 775.082(4)(a), 775.083(1)(d), and 893.13(6)(b), Florida Statutes.

   
   

7. Here, by stipulation, there is no dispute that respondent, by its president and owner's possession of marijuana on the licensed premises, violated the provisions of Section 893.13, Florida Statutes, and is therefore subject to disciplinary action under Section 561.29, Florida Statutes.

   
   

8. In fashioning an appropriate penalty under the facts of this case, due consideration must be given to petitioner's penalty guidelines, as established by Rule 61A-2.022, Florida Administrative Code. See, e.g., Williams v. Department of Transportation, 531 So.2d 994 (Fla. 1st DCA 1988), (agency is required to comply with its disciplinary guidelines in taking disciplinary action against its employees).

   
   

9. Pertinent to this case, the penalty guidelines for a first occurrence violation of chapter 893 ("controlled substances violations") is revocation. Balancing, however, the seriousness of the offense with the limited quantity of marijuana possessed ("two marijuana cigarettes"), the lack of any proof that the marijuana was used on the premises or offered for sale, the lack of any previous criminal or disciplinary history, and Ghazi Farraj's acknowledgment that his conduct was inappropriate and that he would not in the future commit any criminal act or violate any of the laws governing licenses, the usual penalty should be reduced to a sixty (60) day suspension. Rule 61A-2.022(5), Florida Administrative Code (allowing deviation from the guidelines upon mitigating circumstances).

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

Count 4 as charged, and suspending respondent's license for a period of sixty

(60) days.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of January 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 18th day of January 1995.

COPIES FURNISHED:

Thomas A. Klein, Esquire Department of Business

and Professional Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Mr. Ghazi Farraj 1490 NW 71st Street

Miami, Florida 33127

Mr. Ghazi Farraj 1490 NW 71st Street

Miami, Florida 33147

Mr. Paul Pollack, Esquire 1704 Northwest 7th Street Miami, Florida 33125

John J. Harris, Acting Director Division of Alcoholic Beverages

and Tobacco Department of Business

and Professional Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jack McRay General Counsel

Department of Business

and Professional Regulation Suite 60

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: 94-005982

Orders for Case No: 94-005982