STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO )

)

Petitioner, )

)

vs. ) CASE NO. 94-6941

) SANDRA M. BOMIO & HAPY HASSAN, ) d/b/a K BEVERAGE & FOOD )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held in this case before Patricia Hart Malono, Hearing Officer of the Division of Administrative Hearings, on March 21, 1995, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Leslie Anderson-Adams, Senior Attorney

Department of Business & Professional Regulation - Legal Section F

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondents: Hapy Fahim Hassan

K Beverage & Food

2511 West Gate Avenue, Unit #9 West Palm Beach, Florida 33409

STATEMENT OF THE ISSUE

At issue in this case is whether respondents committed the offenses alleged in the Administrative Action, and, if so, the penalty which should be imposed.

PRELIMINARY STATEMENT

The Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco ("Division"), filed a seven-count Administrative Action dated September 26, 1994, in which it sought to impose a penalty against the alcoholic beverage license held by Sandra M. Bomio and Hapy Fahim Hassan d/b/a K Beverage & Food ("respondents"). In each of the counts of the Administrative Action, the Division charged that respondents individually and/or through their agents, servants, or employees had illegally trafficked in and fraudulently possessed U.S.D.A. food stamps, in violation of title 7, section 2024(b)(1), 1/ United States Code, and of section 561.29, Florida Statutes.

The Division specifically alleged that, on four occasions, food stamps were accepted at K Beverage & Food in exchange for ineligible items and that, on three occasions, food stamps were accepted at K Beverage & Food in exchange for cash.

Respondents timely requested a formal hearing on these charges, disputing the allegations stated in the Administrative Action. The case was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct formal hearings pursuant to Section 120.57(1), Florida Statutes. By Notice of Hearing dated January 18, 1995, this case was scheduled for hearing on March 21, 1995.

At the hearing, the Division presented the testimony of two witnesses: Captain Deborah L. Gray, District Supervisor in the Division's West Palm Beach office; and Rene Berlingeri, Senior Investigator for the United States Department of Agriculture, Food and Nutrition Services, Compliance Section. The Division's Exhibits 1, 2, and 3 were received into evidence without objection, and official recognition was given to rule 61A-2.022, Florida Administrative Code. Hapy F. Hassan testified on his own behalf, and respondents' Exhibit 1 was received into evidence without objection.

At the conclusion of the hearing, counsel for the Division stated that no transcript would be provided. The Division timely filed its Proposed Recommended Order. Mr. Hassan requested an extension of 14 days, and this request was granted. On April 20, 1995, Mr. Hassan timely filed a letter on respondents' behalf. Specific rulings on the proposed findings of fact are included in the appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material to this case, respondents held alcoholic beverage license number 60-05592, series 2-APS, for use at the premises of K Beverage & Food, located at 2511 West Gate Avenue #9, West Palm Beach, Florida. This license was issued November 18, 1991, by the Florida Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco.

   
   

2. On or about August 22, 1991, K Beverage & Food was authorized by the United States Department of Agriculture, Food and Nutrition Service ("F.N.S."), to accept food stamps. In the application, respondents, acting through Mr. Hassan, acknowledged that they had read and fully understood the Food Stamp Program regulations. As part of the authorization process, Mr. Hassan attended a meeting and education course on the Food Stamp Program regulations applicable to retail grocers, and he signed an acknowledgment that he understood these regulations.

   
   

3. The F.N.S. Compliance Section routinely conducts investigations of authorized stores to ensure compliance with all applicable federal rules and regulations. The compliance investigation of K Beverage & Food commenced on March 31, 1993, when Senior Investigator Rene Berlingeri entered the store at approximately 2:30 p.m. A man was working at the checkout counter when Mr. Berlingeri brought three food and four non-food items to the counter for purchase. The clerk rang up the total price for the seven items. Mr. Berlingeri offered food stamps in payment, and the clerk accepted them without comment. The clerk put the food stamps in the drawer of the cash register.

   
   

4. On April 8, 1993, Mr. Berlingeri visited K Beverage & Food for the second time. The store clerk at that time was a woman who identified herself as

   Isabel. Mr. Berlingeri again selected three food and four non-food items for purchase. Isabel rang up the total price for the seven items and, without comment, accepted food stamps as payment.

   
   

5. On April 13, 1993, Mr. Berlingeri visited K Beverage & Food; Isabel was the clerk on duty. He selected three food items and four non-food items.

   Isabel rang up the total price of the seven items and again, without comment, accepted food stamps as payment. As she was bagging his purchases, Mr.

   Berlingeri selected a six-pack of beer, and, without comment, Isabel accepted food stamps as payment.

   
   

6. On April 15, 1993, Mr. Berlingeri visited K Beverage & Food. Isabel was again working as clerk. He selected one food item and three non-food items, including a six-pack of beer. Isabel accepted food stamps as payment for the total price of the four items, without comment. Mr. Berlingeri then asked if she would exchange food stamps for cash, and he gave her a book of food stamps with a face value of $50. Isabel gave him $45 in cash from the cash register and put the book of food stamps into the cash register.

   
   

7. On April 20, 1993, Mr. Berlingeri entered K Beverage & Food at approximately 10:15 a.m. and asked Isabel if she would purchase $200 worth of food stamps. At Isabel's request, he returned at approximately 11:40 a.m. He gave Isabel food stamps with a face value of $200; she gave him $140 in cash, which she took from under the counter. She told Mr. Berlingeri that, if he ever wanted to exchange more food stamps for cash, he should come to K Beverage & Food at about the same time of day.

   
   

8. On July 17, 1993, Mr. Berlingeri made his final investigative visit to K Beverage & Food. The clerk on duty, who identified himself during the transaction as "Sam", gave Mr. Berlingeri $130 in cash in exchange for food stamps with a face value of $200. Sam put the food stamps under the counter, but Mr. Berlingeri did not see the place from which Sam obtained the cash. During the transaction, Sam acknowledged that he knew Isabel; he asked Mr. Berlingeri to keep the transaction confidential.

   
   

9. On July 23, 1993, Mr. Berlingeri returned to K Beverage & Food to identify the persons involved in the food stamp transactions. The clerk on duty told Mr. Berlingeri that the owner of K Beverage & Food had another store, called A1A Food Discount Beverage, and Mr. Berlingeri went there. He approached a woman who identified herself as Sandra Marcel Hassan; Mr. Berlingeri verified the identification from a Florida driver's license. While Mr. Berlingeri was in A1A Food Discount Beverage, the person known to him as "Isabel" came into the store. She produced a Florida driver's license that identified her as Maria Isabela Besola. The clerk that Mr. Berlingeri dealt with at K Beverage & Food in March and the clerk who took part in the July 17 transaction were not identified.

   
   

10. During the period in which the transactions set out in paragraphs 3 through 9 occurred, Mr. Hassan was present at K Beverage & Food only in the mornings, when he prepared the bank deposit, and in the afternoons after 5:00 p.m., when he came in to work. Mr. Hassan was not present in the store when any of the transactions at issue occurred, nor was there evidence that respondent Sandra M. Bomio Hassan was present at K Beverage & Food at any of the times relevant to this case.

    
    

11. Respondents knew that it is a violation of Food Stamp Program regulations for a retail food store to accept food stamps in exchange for

    ineligible, non-food items and in exchange for cash. Six violations occurred at K Beverage & Food over a period of 21 days, with a seventh violation occurring

    60 days later, and three different clerks were involved in the violations. The repeated violations were conducted in an open and flagrant manner. Even though respondents were not on the premises when the violations occurred, it may be reasonably concluded that, due to the number of violations and the open manner in which they occurred, respondents condoned or negligently overlooked the violations by failing to exercise due diligence in supervising their employees and in monitoring the licensed premises.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(1), Fla. Stat.

    
    

13. Because the Division in this case seeks, inter alia, revocation or suspension of respondents' alcoholic beverage license, the Division bears the burden of proving the charges by clear and convincing evidence. See Ferris v. Turlington, 510 So. 2d 292, 294 (Fla. 1987); Nair v. Department of Business Regulation, Bd. of Medicine, 20 Fla. L. Weekly D983, D984 (Fla. 1st DCA Apr. 21, 1995); Pic N' Save Central Florida, Inc. v. Department of Business Regulation, Div. Of Alcoholic Beverages & Tobacco, 601 So. 2d 245, 249 (Fla. 1st DCA 1992); Robertson v. Department of Professional Regulation, Bd. Of Medicine, 574 So. 2d 154, n.2 (Fla. 1st DCA 1990).

    
    

14. The Division seeks to impose a penalty on the alcoholic beverage license held by respondents pursuant to its authority under section 561.29, Florida Statutes, which provides in pertinent part:

    
    

    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, or any rule issued pursuant thereto.

          
          

15. In each of the seven counts of the Administrative Action filed in this case, the Division alleged that respondents and/or their agents or employees violated title 7, section 2024(b)(1), United States Code. 2/ That section provides, in pertinent part:

    
    

    [W]hoever knowingly uses, transfers, acquires, alters, or possesses coupons or authorization cards in any manner not authorized by this chapter or the regulations issued pursuant to this chapter shall, if such coupons or authori-

    zation cards are of a value of $100 or more, be guilty of a felony, . . . or, if such coupons or authorization cards are of a value of less than

    $100, shall be guilty of a misdemeanor.

    
    

    One of the federal regulations governing the Food Stamp Program provides that "[c]oupons may be accepted . . . only in exchange for eligible food. Coupons may not be accepted in exchange for cash except when cash is returned as change in a transaction in which coupons were accepted in payment for eligible food."

    7 C.F.R. 278.2(a). Proof of a violation of 7 U.S.C. Section 2024(b)(1) requires proof that the person charged knew "that he acquired and possessed food stamps" and knew "that his acquisition or possession of food stamps was in a manner unauthorized by statute or regulations." Liparota v. United States, 471 U.S. 418, 423 n.5, 433, 105 S. Ct. 2084, 2087, 2092, 85 L. Ed. 2d 434 (1985).

    
    

16. The Division has not proven that respondents violated the provisions of 7 U.S.C. Section 2024(b)(1) or engaged in any intentional wrongdoing. The Division has, however, proven by clear and convincing evidence that respondents' agents and/or employees violated 7 U.S.C. Section 2024(b)(1).

    
    

17. Sanctions may be imposed on an alcoholic beverage license pursuant to section 561.29(1)(a) only when the licensee is guilty of personal misconduct, that is, only when the licensee is "culpable, as a result of his own negligence, intentional wrongdoing, or lack of diligence in supervising and maintaining surveillance over the premises." Simmons v. Department of Business Regulation, Division of Alcoholic Beverages, 465 So. 2d 578, 579 (Fla. 1st DCA 1985); see also Pic N' Save, 601 So. 2d at 250; Pauline v. Lee, 147 So. 2d 359 (Fla. 2d DCA 1962). Because the violations of 7 U.S.C. 2024(b)(1) by respondents' employees were conducted repeatedly and openly, the Division has proven by clear and convincing evidence that respondents are culpable and guilty of personal misconduct for not adequately supervising their employees and monitoring the licensed premises. Therefore, respondents' alcoholic beverage license is subject to discipline pursuant to section 561.29(1)(a).

    
    

18. Rule 61A-2.022, Florida Administrative Code, contains the applicable penalty guidelines. The suggested penalties for non-criminal violations not otherwise listed in the rule range from $250 to license revocation. The appropriate penalty in this case, given the seriousness of the violations, the respondents' statements of remorse, and the lack of evidence of any previous violations, is a $1,000 administrative fine.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a Final Order finding respondents Sandra M. Bomio and Hapy Hassan, d/b/a K Beverage & Food, guilty of violating section 561.29(1)(a), Florida Statutes, and imposing an administrative fine in the amount of $1,000.

DONE AND ENTERED this 31st day of May 1995, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

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 31st day of May 1995.

ENDNOTES

1/ In what is apparently a typographical error, the statutory section is referred to in Count #1 as 2024(b)

2/ In its Proposed Recommended Order, the Division refers to and quotes from sections 409.325 and .326, Florida Statutes, which include both criminal and non-criminal penalties for food stamp fraud. The Division did not charge respondents with violation of these Florida laws, and disciplinary action in this case cannot be based on such grounds. See Kinney v. Dep_t of State, 501 So. 2d 129, 133 (Fla. 5th DCA 1987); Sternberg v. Dep_t of Professional

Regulation, Bd. Of Medical Examiners, 465 So. 2d 1324, 1325 (Fla. 1st DCA 1985); Hunter v. Dep_t of Professional Regulation, 458 So. 2d 842, 844 (Fla. 2d DCA 1984).

APPENDIX

The following are my specific rulings on the proposed findings of fact contained in the Division_s Proposed Recommended Order:

Paragraphs 1 through 9: Adopted in substance though not verbatim.

Paragraph 10: Adopted in substance as to the identification of all persons except Sahan Mohomeed. This identification was uncorroborated and, therefore, cannot form the basis of a finding of fact.

Paragraphs 11 through 13: Adopted in substance though not verbatim.

The respondents submitted a letter consisting of statements in explanation of the events which were the subject of this proceeding and of statements in mitigation. Because there are no separately stated proposed findings of fact, no specific rulings are made.

COPIES FURNISHED:

Leslie Anderson-Adams, Senior Attorney Department of Business & Professional

Regulation - Legal Section F Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-1007

Hapy Fahim Hassan K Beverage & Food

2511 West Gate Avenue Unit # 9

West Palm Beach, Florida 33409

Captain Deborah L. Gray Division of Alcoholic Beverages

and Tobacco

111 Georgia Avenue Room 207

West Palm Beach, Florida 33401

Richard T. Farrell, Secretary Department of Business and

Professional Regulation Northwood Centre

Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Linda Goodgame, General Counsel Department of Business and

Professional Regulation 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: 94-006941

Orders for Case No: 94-006941