STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 97-0142

) ALI EID, d/b/a S&A FOOD MART, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Fort Myers, Florida, on March 20, 1997.

APPEARANCES

For Petitioner: Miguel Oxamendi

Senior Attorney

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: John E. Spiller

Broadman & Spiller Post Office Box 5250

Immokalee, Florida 34143-5250

STATEMENT OF THE ISSUE

The issue is whether Respondent allowed his employee to purchase stolen property while working on the licensed premises and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Action dated December 6, 1996, Petitioner alleged that Respondent permitted one of his employees to purchase stolen property while working at a convenience store operated by Respondent and licensed to sell alcoholic beverages. The Administrative Action alleges that on August 26, 1996, Respondent permitted an employee named Fuzan Eid to purchase a stolen computer keyboard; on August 28, 1996, Respondent permitted Fuzan Eid to purchase a stolen fax machine; and, on September 12, 1996, Respondent permitted Fuzan Eid to purchase stolen packages of Miller Lite beer. The Administrative Action states that Respondent thereby violated Sections 561.29(1)(a) and 812.019, Florida Statutes, and seeks revocation or lesser discipline.

Respondent demanded a formal hearing.

At the hearing, Petitioner called three witnesses and offered into evidence no exhibits. Respondent called four witnesses and offered into evidence three exhibits. The exhibits were admitted except Respondent Exhibit 3.

The parties did not order a transcript.

FINDINGS OF FACT

1. Respondent holds alcoholic beverage license number 21- 00579, series 2-APS, for the licensed premises known as S&A Food Mart. S&A Food Mart is a convenience store located at 516 West Main Street, Immokalee, Florida. The sign outside the

   convenience store identifies the premises as “Coastal Mart,” in reference to the independent company that owns the retail gasoline business operated at the same location.

2. Respondent owns four convenience stores or gasoline stations in the Immokalee area. In the summer of 1996, he owned three such businesses. Respondent owns another convenience store with his brother, Ribye Eid. Respondent is the exclusive owner of the S&A Food Mart and the remaining businesses.

3. Respondent’s businesses are open from around 5:00 am until late in the evening. Respondent works at the S&A Food Mart with two or three other employees, including Fuzan Eid, who is Respondent’s nephew.

4. On August 26, 1996, an undercover Collier County sheriff’s deputy with a confidential informant entered the S&A Food Mart and spoke with Fuzan, who was the only employee working in the store at the time. The deputy informed Fuzan that she had sold a stolen VCR to someone at nearby convenience store and asked if he wanted to buy a stolen computer keyboard.

5. Fuzan called someone at the other convenience store to confirm that he had purchased the VCR. Learning that he had, Fuzan told the deputy that he was interested in buying the keyboard. The informant went outside to retrieve the keyboard from the deputy’s vehicle. While she was gone, the deputy told Fuzan that the price of the keyboard was $20. Fuzan agreed to pay this amount and told the deputy and informant that he wanted to

   purchase an entire computer. The deputy agreed to sell a complete computer to him piece-by-piece.

6. The informant returned to the store with the keyboard in a bag. After examining the keyboard, Fuzan told the deputy that he wanted to take possession of the keyboard outside of the store and outside the presence of the informant. As the deputy and Fuzan exited the store, Fuzan locked the door to the store, took the keyboard, and placed it in his truck. Fuzan then paid the deputy $20, which he had removed from the store’s cash register. Fuzan then unlocked the door to the store and reentered the premises.

7. On August 27, 1996, the deputy returned to the S&A Food Mart. The lone employee in the store was Respondent. The deputy said that she had a stolen VCR to sell and showed it to Respondent. He said that he was not interested. She then asked when Fuzan would be back. Respondent told her that he worked the next day.

8. The next day, the deputy and confidential informant returned to the S&A Food Mart and found Fuzan working in the presence of another employee who was not Respondent. The employee was probably not able to understand spoken English.

9. The deputy told Fuzan that she had a fax machine to sell and showed it to him in a bag. She said she also had for sale a VCR, air impact wrench, and TV/VCR combo.

10. Fuzan said that he wanted the fax machine. He put it aside, and the employee took it into a nearby office inside the store. Fuzan then called a person named Richard to see if he wanted to buy the remaining items. After instructing the employee to load the fax machine in the truck and watch the store, Fuzan and the deputy went outside to see the rest of the merchandise.

11. After seeing the VCR and TV/VCR combo, Fuzan and the deputy each carried an item back into the store, which did not stock such items for sale at retail. The deputy told Fuzan that she had talked to his uncle the previous day. Fuzan wanted to know what his uncle had said and if he had bought any merchandise. The deputy told him that Respondent had not.

12. Fuzan then put the TV/VCR combo and VCR behind the cash register and they waited for the person whom Fuzan had called earlier about the merchandise. The person arrived and they looked at the merchandise. The deputy and the person negotiated the sale in the store with Fuzan and the buyer behind the sales counter and the deputy on the other side of the counter. At times, store customers arrived and the deputy had to step back from the counter. There was no effort to disguise the nature of the transaction.

13. Eventually Fuzan purchased the fax machine and TV/VCR combo. He and the other buyer asked the deputy to bring more

    stolen items to the store. Fuzan paid $250 for the property with money that he had taken from the cash register.

14. The deputy next visited the store on September 12, 1996, when she went alone to try to sell six 12-packs of stolen Miller Lite beer. Fuzan was working at the time, and Respondent was not present.

15. Fuzan agreed to purchase the beer for $25 and paid for the beer with money from the cash register. Fuzan then sent the same employee out to the deputy’s vehicle to get the beer. He returned with the beer and placed it in a stack of beer already in the store for sale at retail.

16. In the meantime, Fuzan said that he wanted a CPU for a computer. He asked for a chip speed of 133 MHz or 166 MHz. The deputy suggested that he write down what he wanted, and she would buy it for him.

17. The investigation ended with the arrest of Fuzan.

    
    

18. Respondent audited the cash register nightly at the S&A Food Mart and never found any shortages. Evidently, Fuzan replaced the money each day prior to the audit.

19. Although there are suspicious circumstances surrounding the extent of Respondent’s knowledge of the illegal activities of Fuzan at the store, Petitioner has failed to prove that Respondent was aware of the criminal activity of his nephew.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

21. Section 561.29(1)(a) authorizes the Division of Alcoholic Beverages and Tobacco to revoke or suspend the license of any licensee guilty of a

    Violation by the licensee or his or its agents, officers, servants, or employees, on the licensed premises, or elsewhere while in the scope of employment, of any of the laws of this state or of the United States, or violation of any municipal or county regulation in regard to the hours of sale, service, or consumption of alcoholic beverages or license requirements of special licenses issued under s. 561.20, or engaging in or permitting disorderly conduct on the licensed premises, or permitting another on the licensed premises to violate any of the laws of this state or of the United States. A conviction of the licensee or his or its agents, officers, servants, or employees in any criminal court of any violation as set forth in this paragraph shall not be considered in proceedings before the division for suspension or revocation of a license except as permitted by chapter 92 or the rules of evidence.

22. Section 812.019(1) provides that it is a second degree felony for a person to “traffic. . . in, or endeavor. . . to traffic in, property that he knows or should know is stolen.”

23. Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

24. Petitioner has shown that Fuzan Eid trafficked in stolen goods. It is hard to determine the extent of guilty knowledge of the employee who did not speak English. But the acts and omissions of Fuzan and the other employee are relevant primarily to disclose the extent of Respondent’s involvement in these criminal acts.

25. Petitioner has not proved by clear and convincing evidence that Respondent knew that Fuzan was trafficking in stolen goods at the store. Respondent himself did not engage in any criminal behavior at his store. He could have emphatically directed the deputy not to return to the store. He could have followed up with Fuzan to ensure that he was not purchasing stolen goods at the store. But Respondent’s failure to take these prudent actions does not substitute for clear and convincing evidence that Respondent permitted Fuzan and possibly the other employee to purchase stolen merchandise on the licensed premises.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that the Division of Alcoholic Beverages and Tobacco enter a final order dismissing the Administrative Action against Respondent.

ENTERED in Tallahassee, Florida, this 6th day of May, 1997.

COPIES FURNISHED:

Miguel Oxamendi, Esquire Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street

ROBERT E. MEALE

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 6th day of May 1997.

Tallahassee, Florida 32399-1007

John E. Spiller, Esquire Broadman & Spiller

Post Office Box 5250 Immokalee, Florida 34143-5250

Richard Boyd, Director

Division of Alcoholic Beverages and Tobacco

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Lynda L. Goodgame General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 97-000142

Orders for Case No: 97-000142