Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco VS. Samer [brahim d/b/a In and Out Food Mart (0° 22-0 | Final Order No. BPR-2001-03876 Date: 9. 17-0 I FILED A Pr Department of Business and Professional Regulation AGENCY CLERK Sarah Wachman, Agency Clerk id By: Buprndo.t. Mehohe bs Department of Business and Professional Regulatio: *) ‘o> Division of Alcoholic Beverages and Tobacco ~ Northwood Centre . 1940 North Monroe Street Tallahassee, Florida 32399-1020 Sf DOAH CASE NOS. 01-1318, 01-1319, 01-1320, 01-1321, and 01-1322 PETITIONER ‘ DABT CASE NOS. AL 47 990183, AL 47 990184, AL 49 990185, AL 47 990188, and AL 47 990189 LICENSE NOS. 49-00003/1APS, 47-00596/2COP, and 47-00986/2COP RESPONDENT FINAL ORDER This matter comes before me for final Agency Order. The issue before me is whether and to what extent Respondent’s alcoholic beverage licenses are subject to penalties pursuant to Sections 212.14, 212.15, 832.05, 561.29(1)(a) and (e), Florida Statutes, and Rule 61A-2.022 Florida Administrative Code. Whether the Respondent’s Aicoholic Beverage Licenses are subject to revocation pursuant to Section 561.29, Florida Statutes. 3 PRELIMINARY STATEMENT On March 10, 2000, the Division issued an administrative action against Respondent. Respondent filed a timely request for hearing, citing disputed issues of fact. A formal hearing was conducted by Administrative Law Judge Charles C. Adams, Division of Administrative Hearings, on May 16, 2001. Case Numbers 01-1318, 01-1319, 01-1320, 01-1321, 01-1322 Page 2 of 5 4. A Recommended Order was issued by the administrative law judge on June 22, 2001. 5. Exceptions to the Recommended Order were filed by Respondent on July 9, 2001. 6. With respect to the findings of fact and conclusions of law contained in the Recommended Order, Section 120.57(1), Florida Statutes, provides: The agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction. When rejecting or modifying such conclusion of law or interpretation of administrative rule, the agency must state with particularity its reasons for rejecting or modifying such conclusion or law or interpretation or administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified. Rejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact. The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. FINDINGS OF FACT 6. A thorough review of the entire record of this matter reveals that the Findings of Fact contained in the Recommended Order are based on competent, substantial eviclence and that the proceedings on which the findings were based complied with the essential requirements of the law. 7. The Division hereby adopts and incorporates by reference the Findings of Fact as set forth in the Recommended Order. CONCLUSIONS OF LAW 8. The Conclusion of Law contained in paragraph 13 on page 8 of the Recommended Order is respectfully rejected. As stated in paragraph 13, the theory in prosecuting the case for issuing the check for the license fees is that Respondent, his agent, servant, or employee violated Section 832.05, Florida Statutes, and by virtue of that violation has violated Section 561.29(1)(a), Florida Statutes, and is subject to revocation or suspension of the licenses involved. However, paragraph 13 goes on to state that though the Respondent in his request for hearing did concede that the check for Page 2 of 5 Case Numbers 01-1318. 01-1319, 01-1320, 01-1321, 01-1322 Page 3 of 5 insufficient funds was issued, he did not concede that either he or any other person he was responsible for, that is to say, his agent, servant, or employee, was responsible for issuing the check for which insufficient funds was on deposit to make payment for the check and in conclusion states that Petitioner failed to prove that Respondent, his agent, servant or employee violated Section 832.05, Florida Statutes, thereby violating Section 561.29(1)(a), Florida Statutes. This interpretation of Section 832.05, Florida Statutes, is rejected. 9. Section 832.07, Florida Statutes, provides in part: 832.07 Prima facie evidence of intent; identity. (1)(b) when a check is drawn on a bank in which the maker or drawer has no account or a closed account, it shall be presumed that such check was issued with the intent to defraud, and the notice requirement set forth in this section shall be waived. (2) IDENITY: (b) To establish prima facie evidence: 2. The following information regarding the identity of the person presenting the check must be obtained by the person accepting such check: The presenter’s full name, residence address. home phone number, business phone number, place of employment, sex, date of birth, height. (d) if a check is received by a payee through the mail or by delivery to a representative of the payee, the prima facie evidence referred to in paragraph (a) may be established by presenting the original contract. order, or request for services that the check purports to pay for, bearing the signature of the person who signed the check, or by presenting a copy of the information required in subparagraph (b)2. which is on file with the acceptor of the check together with the signature of the person presenting the check. 10. During the hearing, Petitioner presented evidence establishing the identity of the Respondent, the person who issued the worthless check. Petitioner’s Exhibits 1,2, and 3, included the license applications for each of Respondent’s beverage licenses. Each application included the Respondent’s full name, residence address, home phone number, business phone number, place of employment, sex, date of birth, height, and Respondent’s notarized signature. Petitioner’s Exhibits 3, 7 and 10, the worthless check, bear a signature seemingly identical to Respondent’s notarized signature Page 3 of 5 Case Numbers 01-1318, 01-1319, 01-1320, 01-1321, 01-1322 Page 4 of 5 found on each beverage license application. Additionally, the worthless check bears Respondent’s full name and business address, as well as each of the three beverage license numbers, hand-written on the check. Respondent did not offer any evidence to rebut Petitioner’s prima facie evidence of both intent and identity as prov'ded for in Section 832.05, Florida Statutes. In the absence of any evidence to the contrary and in consideration of the Petitioner’s evidence presented at the hearing, it is reasonable to conclude that Respondent did indeed issue the check for which insufficient funds were available. 11. By rejecting the conclusion of law in paragraph 13 of the Rec ommended Order, rejection of the result contained in the Recommended Order is alsc required. As Respondent did violate Section 832.95, Florida Statutes, and is guilty of the violations in DOAH Case No. 01-1318, DABT AL 47 990133; DOAH Case No. 01-1319. DABT AL 47 990184; and DOAH Case No. OI- 1320, DABT AL 47 990185, dismissal of these cases as recommended would be inappropriate. 12. The Division adopts and incorporates by reference the remainder Conclusions of Law, namely paragraphs 9-12, and paragraphs 14-16, as set forth in the Recommended Order. ORDER Having fully considered the complete record of this case, the Recommended Order and the exceptions filed, it is ORDERED that Respondent is found to be guilty of the violations in DOAH Case No. 01-1318, DABT AL 47 990183; DOAH Case No. 01-1319, DABT AL 47 990184; DOAH Case No. 01-1320, DABT AL 990185; DOAH 01-1321, DABT AL 47 00188; and DOAH Case No. 01-1322, DABT AL 47 990189; accordingly Respondent’s Alcoholic Beverage License Nos. 47- 00596, Series 2APS; 47-00986, Series 2COP and 49-00003, Series IAPS, are hereby REVOKED. DONE and ORDERED, this _/ 0 day of September, 2001. Page 4 of 5 Case Numbers 01-1318, 01-1319, 01-1320, 01-1321, 01-1322 Page 5 of 5 This Order of the Director of the Division of Alcoholic Beverages and Tobacco will become final unless judicial review is initiated within 30 days of the date of rendition. The rendition date is the date the Order is filed ty the Agency Indexing Clerk. Judicial review may be commenced by filing an original Notice of Appeal with the Clerk of the Division of Alcoholic Beverages and Tobacco and a copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal, pursuant to Section 120.68, Florida Statutes and Rule 9.110, F.R.A.P. Mail Certification: This Final Order was sent by Certified Mail 7000 0520 0021 2085 3922 to: Samer [brahim 880 West Pensacola Tallahassee, FL 32304 Pedi Syd ve Seb a Additional copies mailed to: Hardy L. Roberts, III, General Counsel Department of Business ancl Professional Regulation 1940 North Monroe Street Charles C. Adams, Administrative Law Judge Tallahassee, Florida 32399-2202 Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32299-3060 District Enforcement/Licensing Office Page 5 of S

Docket for Case No: 01-001318

Orders for Case No: 01-001318