STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 98-0581

) RAMESH GORDON KOWLESSAR, d/b/a ) K'S AMERICAN & WEST INDIAN )

GROCERY & FOOD, )

)

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 April 1, 1998, in Fort Lauderdale, Florida.1

APPEARANCES

For Petitioner: James D. Martin, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: Lloyd H. Falk, Esquire

600 Southwest 4th Street

Fort Lauderdale, Florida 33315 STATEMENT OF THE ISSUE

At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative action and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On April 4, 1997, the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Department), filed a two-count Administrative Action against Respondent, the holder of an alcoholic beverage license authorizing the sale of alcoholic beverages (beer and wine) for consumption off the licensed premises. Count I charged that:

On or about March 25, 1997, you, RAMESH GORDON KOWLESSAR, d/b/a K'S AMERICAN & WEST INDIAN GROCERY & FOOD STORE, your agent(s),

servant(s), or employee(s), to wit: RAMESH GORDON KOULESSAR [sic], sole Licensee, did sell alcoholic beverages in a manner not permitted by license, to wit: sold two Budweiser Beers for consumption on premises with a 2APS license, contrary to section FSS 562.12 (1), within 561.29 (1)(a).

Count II charged that:

On or about March 25, 1997, you, RAMESH GORDON KOWLESSAR, d/b/a K'S AMERICAN & WEST INDIAN GROCERY & FOOD STORE, your agent(s),

servant(s), or employee(s), to wit: RAMESH GORDON KOULESSAR [sic], sole Licensee, did possess, for the purpose of resale, non- Florida-tax-paid cigarettes, to wit: 52 packs of various brands of cigarettes on your licensed premises, contrary to section 210.18(1), within 561.29(1)(a), Florida State Statutes.

Respondent filed a request for hearing whereby he contested the material facts alleged in the Administrative Action and requested a formal hearing. Consequently, on January 28, 1998, the Department forwarded the matter to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct the hearing Respondent had requested.

At hearing, Petitioner called Sergeant Carol Owsiany and Special Agent Michael Kaufman as witnesses, and Respondent's answers to the Department's request for admissions were accepted of record.2 Respondent, Ramesh Gordon Kowlessar, testified on his own behalf, and also offered the testimony of his wife, Seuranie Kowlessar. Respondent had marked for identification four photographs of the licensed premises (Respondent's Exhibits

1 through 4), which were used for demonstrative purposes.

The transcript of the hearing was not ordered. Therefore, at the conclusion of the hearing, it was announced on the record that 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 recommended order.

FINDINGS OF FACT

1. At all times material hereto, Respondent, Ramesh Gordon Kowlessar, held license number 16-12937, series 2APS, authorizing the sale of alcoholic beverages (beer and wine) for consumption off the premises known as K's American & West Indian Grocery & Food, located at 4486 West Hallandale Beach Boulevard, Pembroke Park, Florida (hereinafter "the licensed premises").

2. On March 25, 1997, Sergeant Carol Owsiany, an agent with the Division of Alcoholic Beverages and Tobacco, and Michael Kaufman, a special agent with the Division of Alcoholic Beverages and Tobacco, operating undercover, visited the licensed premises

   to investigate a complaint that Respondent was selling alcoholic beverages for consumption on the premises (a practice not permitted by Respondent's license).

3. Sergeant Owsiany and Agent Kaufman entered the premises at or about 10:15 a.m., and were greeted by Respondent who, after assuring the agents that they could dine on the premises, seated them at the counter. Sergeant Owsiany ordered a meal of curry and rice, and Agent Kaufman requested beer with the meal. The Respondent directed Agent Kaufman to the beer cooler.

4. Agent Kaufman selected two cans of "Budweiser" beer (an alcoholic beverage) from the cooler and returned to the counter, where he handed one beer to Sergeant Owsiany. The agents opened their respective beers, and consumed a portion of the beer while seated at the counter in the presence of Respondent.

5. Following service of her meal, Sergeant Owsiany consumed a small portion of food, and requested that the remainder be packaged to go. The agents then proceeded to the check-out counter with the two open and partially consumed beers, as well as the packaged meal. At the counter, the agents observed 52 packages of unstamped, non-Florida-tax-paid cigarettes offered for sale. Sergeant Owsiany paid for her meal and the two beers, and the agents exited the building.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes.

7. Where, as here, the Department proposes to take punitive

   action against a licensee, it must establish grounds for disciplinary action by clear and convincing evidence.

   Section 120.57(1)(h), Florida Statutes (1997), and Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

8. Pertinent to this case, Subsection 561.29(1), Florida Statutes, provides that the Division of Alcoholic Beverages and Tobacco 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 that, inter alia, the licensee or his or its agents, officers, servants, or employees, on the licensed premises or elsewhere in the scope of employment violated any of the laws of this state or of the United States. Moreover, Subsection 561.29(3), Florida Statutes, provides that the Division of Alcoholic Beverages and Tobacco 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.

   
   

9. Section 562.12(1), Florida Statutes, proscribes the following conduct:

   . . . it is unlawful for any licensee to sell alcoholic beverages except as permitted

   by her or his license, or to sell such beverages in any manner except that permitted by her or his license; and any licensee or other person . . . who keeps and maintains a place where alcoholic beverages are sold unlawfully, is guilty of a misdemeanor of the second degree, punishable as provided in s.

   775.082 or s. 775.083.

   
   

   Here, by selling two cans of "Budweiser" beer for consumption on the premises, a practice not permitted under Respondent's 2APS license, Respondent has been shown to have violated the provisions of Subsection 562.12(1), Florida Statutes, and therefore, Subsection 561.29(1)(a), Florida Statutes, as alleged in Count I of the Administrative Action.

10. Pertinent to Count II of the Administrative Action, Section 210.02, Florida Statutes, imposes a cigarette tax, as follows:

    1. An excise or privilege tax, in addition to all other taxes of every kind imposed by law, is imposed upon the sale, receipt, purchase, possession, consumption, handling, distribution, and use of cigarettes in this state, in the following amounts, except as hereinafter otherwise provided, for cigarettes of standard dimensions:

       1. Upon all cigarettes weighing not more than 3 pounds per thousand, 16.95 mills on each cigarette.

          
          

          * * *

          
          

          (3) When cigarettes as described in paragraph (1)(a) are packed in varying quantities of 20 cigarettes or less . . . the following rate shall govern:

          
          

          * * *

          
          

       2. Packages containing more than 10 but not more than 20 cigarettes require a

          33.9-cent tax.

          
          

11. For evasion of the cigarette tax, Section 210.18(1), Florida Statutes, provides:

    Any person who . . . sells or offers for sale unstamped packages of cigarettes in violation of the provisions of this part

    . . . is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. . . .

    
    

    Here, by offering for sale 52 packages of unstamped non-Florida- tax-paid cigarettes, Respondent has been shown to have violated Subsection 210.18(1), Florida Statutes, and, therefore, Subsection 561.29(1)(a), Florida Statutes, as alleged in Count II of the Administrative Action.

12. Having reached the foregoing conclusions, it remains to resolve the appropriate penalty that should be imposed. Pertinent to this issue, Rule 61A-2.022(11), Florida Administrative Code, provides, for a first violation of

    Section 562.12(1), Florida Statutes, a $500 civil penalty; and for a first violation of Section 210.18(1), Florida Statutes, when less than 500 packs of non-tax-paid cigarettes are possessed for purposes of resale, a $500 civil penalty and payment of the excise tax. Also pertinent to this issued, Rule 61A-2.022(7), Florida Administrative Code, provides that:

    All civil penalties may be substituted with license or permit suspensions using the ratio of 1 day for each $50; for example, a licensee could offer a 5-day license suspension instead of a $250 civil

    penalty. . . .

13. Here, the penalty of $500 for each offense provided by the Department's penalty guideline is appropriate, subject to Respondent's option to substitute a suspension, as provided in Rule 61A-2.022(7), Florida Administrative Code, as well as assessment of the excise tax that was evaded.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered finding Respondent guilty of the charges set forth in the Administrative Action; imposing a civil penalty in the total sum of $1,000 for such violations, subject to Respondent's option to substitute a period of suspension in lieu of all or a portion of the civil penalty; and, requiring Respondent to pay to the Department excise taxes in the sum of $17.63.

DONE AND ENTERED this 22nd day of April, 1998, 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

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1998.

ENDNOTES

1/ Petitioner's counsel participated by video teleconference.

2/ Respondent's answers were amended at hearing to correctly reflect that Respondent admitted request for admissions numbered

1 through 5, 8 and 9, and that he denied request for admissions numbered 6, 7, and 10.

COPIES FURNISHED:

James D. Martin, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Lloyd H. Falk, Esquire 600 Southwest 4th Street

Fort Lauderdale, Florida 33315

Ramesh Kowlessar

4486 West Hallandale Beach Boulevard Pembroke Park, Florida 33023

Captain Allen F. Nash

Division of Alcoholic Beverages and Tobacco

Department of Business and Professional Regulation

Post Office Box 934127 Margate, Florida 33063-4127

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 should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 98-000581

Orders for Case No: 98-000581