STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

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

)

Petitioner, )

)

vs. ) Case No. 96-3258

)

KAMEL SUPERMARKET, INC., )

d/b/a KAMEL SUPERMARKET, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on October 14, 1997, in Miami, Florida.

APPEARANCES

For Petitioner: James D. Martin

Assistant General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

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 administration action and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By a four-count administrative action dated June 7, 1996, Petitioner charged that Respondent, the holder of an alcoholic beverage license, did on four separate occasions, "illegally traffic in and fraudulently possess U.S.D.A. Food Coupons, in a manner not authorized by Federal Law, contrary to Title 7, Section 2024(b)(1)[U.S.C.] and F.S.S. 409.325, all within F.S.S. 561.29(1)(a)." In response, Respondent filed a request for hearing, which disputed the charges made by Petitioner, and the matter was referred to the Division of Administrative Hearings to conduct a formal hearing.

At hearing, Petitioner called as witnesses: Major Jorge Herrera, Division of Alcoholic Beverages and Tobacco; Deputy United States Marshal John Karlovitch; and Bernadette Hargrett. Petitioner's Exhibit 1 was received into evidence. Respondent was not present or otherwise represented at hearing, and no proof was offered on its behalf.

The transcript of hearing was not ordered and, therefore, the parties were accorded ten days from the date of hearing to file proposed recommended orders. Petitioner elected to file such a proposal, and it has been duly considered in the preparation of this order.

FINDINGS OF FACT

1. At all times material hereto, Respondent, Kamel Supermarket, Inc., held alcoholic beverage license number

   23-01444, series 2 APS, for the business known as Kamel Supermarket (the "premises"), located at 3601 Grand Avenue, Miami, Dade County, Florida. Jamal E. Rahma was the sole stockholder and officer of Respondent.

2. In May 1995, U.S.D.A. Special Agent John Karlovitch, now a Deputy U.S. Marshall, began an undercover investigation of the premises. Such investigation was predicated on information received which indicated that persons associated with Kamel Supermarket were purchasing U.S.D.A. Food Coupons for cash and at less than their face value.

3. On May 17, 1995, Special Agent Karlovitch gave Bernadette Hargrett, an Investigative Operative operating undercover, four U.S.D.A. Food Coupon Books having an aggregate face value of $200, for the purpose of attempting to sell such books to employees of the licensed premises. Ms. Hargrett entered the licensed premises and met with an unknown male, who appeared to be an employee, and sold him the four coupon books for $150 in cash.

4. On May 31, 1995, Special Agent Karlovitch gave

   
   

   Ms. Hargrett U.S.D.A. Food Coupons having an aggregate face value of $400, for the purpose of attempting to sell such coupons to employees of the licensed premises. Ms. Hargrett entered the licensed premises and met with a different male than on the first occasion, who also appeared to be an employee, and sold him the food coupons for $300 in cash.

5. On August 9, 1995, Special Agent Karlovitch gave

   
   

   Ms. Hargrett U.S.D.A. Food Coupons having an aggregate face value of $800, for the purpose of attempting to sell such coupons to employees of the licensed premises. Ms. Hargrett entered the licensed premises, met with the same unidentified male as on

   May 31, 1995, and sold him the food coupons for $600 in cash.

   
   

6. On September 7, 1995, Special Agent Karlovitch gave

   
   

   Ms. Hargrett U.S.D.A. Food Coupons having an aggregate face value of $1,000, for the purpose of attempting to sell such coupons to employees of the licensed premises. Ms. Hargrett entered the licensed premises, met with Jamal E. Rahma, and, following some discussion, sold him the food coupons for $750 in cash.

   Pertinent to Mr. Rahma's knowledge of the impropriety of his conduct, it is observed that before he would purchase the coupons, Mr. Rahma took Ms. Hargrett outside the store and into his car to discuss the transaction. Also, pertinent to

   Mr. Rahma's knowledge of the impropriety of his conduct, as well as the appropriate penalty, the proof demonstrated that while Kamel Supermarket was at one time authorized to accept food coupons, its authorization was revoked in 1993 for similar misconduct, and that Kamel has previously been the subject of two previous disciplinary actions by Petitioner for similar misconduct. Those actions, one in 1993 and one in 1994, were resolved by consent order and the payment of a civil penalty.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.569 and 120.57(1), Florida Statutes.

8. 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).

9. 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 appear of:

      (a) 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 .

      . . .

10. Here, Petitioner charged that Respondent violated the provisions of Title 7, U.S.C., Section 2024(b)(1) and Section 409.325, Florida Statutes. Title 7, U.S.C., Section 2024(b)(1) provides that it is a violation of Federal Law to knowingly use, transfer, acquire, alter, or possess food coupons contrary to the provisions of such chapter. Similarly, Section 409.325, Florida Statutes, provides:

    (2) Any person who knowingly:

    1. Uses, transfers, acquires, traffics, alters, forges, or possesses, or

    2. Attempts to use, transfer, acquire, traffic, alter, forge, or possess, or

    3. Aids and abets another person in the use, transfer, acquisition, traffic, alteration, forgery, or possession of,

    
    

    a food stamp . . . in any manner not authorized by law is guilty of a crime and shall be punished as provided in subsection (5). For the purposes of this section, the value of an authorization to purchase food stamps shall be the difference between the coupon allotment and the amount paid by the recipient for that allotment.

    * * *

    (5). . .

    (b) If the value of the assistance or identification wrongfully received, retained, misappropriated, sought, or used is of an aggregate value of $200 or more in any 12 consecutive months, such person is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or

    s. 775.084.

    
    

    Accordingly, to demonstrate a violation of Title 7, U.S.C., Section 2024(b)(1) and Section 409.325(2), Florida Statutes, it was incumbent upon Petitioner to demonstrate not only the unlawful purchase or possession of food coupons, which it has done, but also that Respondent's agent or officer knew that purchase or possession of food coupons was in a manner not authorized by law. Liparota v. United States, 471 U.S. 419,

    85 L.Ed. 2d 434, 105 S.Ct. 2084 (1985). Such knowledge may be demonstrated, as in any other case requiring mens rea, by reference to the facts and circumstances surrounding the case. Liparota v. United States, supra. Here, for the reasons set

    forth in paragraph 6, the proof supports the conclusion that Mr. Rahma, Respondent's sole owner and corporate officer, knew

    that his purchase and possession of food coupons on September 7, 1995, was contrary to law. Accordingly, Petitioner has demonstrated by clear and convincing evidence that Respondent violated the provisions of Title 7, U.S.C., Section 2024(b)(1), as well as Section 409.325(2), Florida Statutes, and therefore Section 561.29(1)(a), Florida Statutes.

11. Having resolved that Respondent committed the offenses charged, it remains to resolve the appropriate penalty to be imposed. In this regard, the Department suggests the appropriate penalty, is revocation. Such penalty is consistent with Petitioner's guidelines (Rule 61A-2.022, Florida Administrative Code) and, under the circumstances of this case, appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be rendered revoking Respondent's alcoholic beverage license.

DONE AND ORDERED this 29th day of October, 1997, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1997.

COPIES FURNISHED:

James D. Martin, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Jamal Rahma

c/o Kamel Supermarket 3601 Grand Avenue

Miami, Florida 33129

Major Jorge Herrera

Augusta Building, Suite 100 8685 Northwest 53rd Terrace Miami, Florida 33166

Richard Boyd, Director

Division of Alcoholic Beverages and Tobacco

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-003258

Orders for Case No: 96-003258