STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 07-4601

)

HONORE, MARIE EDIE, d/b/a ) MEP RAGS IMPORT AND EXPORT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in this case by video teleconference on November 29, 2007, with the parties appearing from Miami, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael J. Wheeler, Esquire

Assistant General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Marie Edie Honore, pro se

MEP Rags Import and Export 7202 Northwest 35th Avenue Miami, Florida 33147-5832

STATEMENT OF THE ISSUE

Whether the Respondent, Marie Edie Honore, d/b/a MEP Rags Import and Export (Respondent or licensee), committed the violations alleged in the Administrative Action dated June 12, 2007, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On June 12, 2007, the Petitioner, the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Petitioner or Department), entered an Administrative Action against the Respondent that alleged three violations of law. More specifically, the Department claimed that the Respondent had violated Section 561.23(2), Florida Statutes (2007), because the licensee had failed to display or hold a vendor license in a conspicuous place on the licensed premises.

Secondly, the Department alleged that the Respondent had violated Section 561.55(3)(b), Florida Statutes (2007), by failing to keep records of all purchases and other acquisitions for a period of three years, and finally, the Department alleged that the Respondent had violated Section 562.01, Florida Statutes (2007), by possessing alcoholic beverages on which the excise taxes were unpaid.

The Respondent timely disputed the allegations and represented: the license was displayed, the records of purchases were maintained, and the excise taxes were paid. The Request for Hearing was filed with the Department and the matter was forwarded to the Division of Administrative Hearings for formal proceedings on October 5, 2007.

Thereafter the case was scheduled for hearing. At the hearing, the Department presented the testimony of Special Agent Alejandro Galan. The Petitioner's Composite Exhibit 1 was admitted into evidence. The Respondent's daughter, Marie Pierre, was accepted as a translator for the Respondent. The Respondent does not speak English well and wanted her daughter to assist her. The Respondent's native language is Creole. The Petitioner did not oppose the Respondent's daughter's assistance and for practical purposes she served as the translator and qualified representative for the Respondent.

A transcript of the proceedings has not been filed. The parties were granted ten days within which to file proposed recommended orders. The Petitioner's Proposed Recommended Order was filed on December 5, 2007. The Respondent filed a letter on December 10, 2007. Both documents have been deemed timely filed and have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material to the allegations of this case, the Petitioner is the state agency charged with the responsibility of regulating persons holding alcoholic beverage licenses. See § 561.02, Fla. Stat. (2007).

2. At all times material to the allegations of this matter the Respondent has been a licensee holding license number 2325443KLD. The Respondent was given a temporary license on July 6, 2006 (valid for 90 days). The Respondent's permanent license was issued in September 2006.

3. On February 6, 2007, Special Agent Galen went to the licensed premises at 7202 Northwest 35th Avenue, Miami, Florida 33147, to conduct an inspection. At that time, the Respondent, who speaks inadequate English, was present. According to Special Agent Galen the Respondent did not have her vendor license conspicuously displayed. The Respondent had the license but it was not displayed in a prominent place.

4. Special Agent Galen also asked the Respondent to produce her records for the last three years. Again, as the Respondent does not speak English well, this request was not honored. The Respondent had only been in business (at the most) since July of 2006. Therefore, by best estimates the records to be produced would be for those seven months of operation.

5. Finally, on the date of inspection, Special Agent Galen observed 144 bottles of Haitian rum on which it appeared the excise tax had not been paid. It was later conceded that the excise tax had, in fact, been paid. Consequently, the Petitioner withdrew this complaint against the Respondent.

6. The Respondent maintained that she has shown the Respondent's auditing section all of the pertinent records for her business. Further, as conceded by the Department the Respondent established that she paid the appropriate excise tax

   on the rum in question.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

   § 120.57, Fla. Stat. (2007).

8. Because the Department has withdrawn the third count of the Administrative Action (failure to pay excise taxes) no conclusion is reached as to that issue. As to the other counts, the Department bears the burden of proof to establish by clear and convincing evidence the allegations of the complaint. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

9. Section 561.23(2), Florida Statutes (2007), provides:

   (2) All vendors licensed under the Beverage Law shall display their licenses in conspicuous places on their licensed premises.

   
   

10. It is concluded that the Respondent did not have the license displayed as required by the statute. The Respondent had the license at the premises but it was not so prominently displayed as to be conspicuous. Accordingly, the Department has established by clear and convincing evidence that the licensee violated Section 561.23(2), Florida Statutes (2007).

11. Section 561.55(3)(a), Florida Statutes (2007), provides:

    (3)(a) Each manufacturer, distributor, broker, agent, and importer licensed under the Beverage Law shall maintain and keep for a period of 3 years at the licensed place of business such records of alcoholic beverages received, sold, or delivered within or

    without this state as may be required by the division.

    
    

12. With regard to this alleged violation, the Department has failed to meet its burden of proof. The Respondent does not speak English well. The Respondent could not produce records for three years as the business had only been in business approximately seven months at the time of the inspection. To ask for three years’ worth of records of a person who does not speak English well, when the business had only been open seven months would logically be confusing. Moreover, as the Respondent adequately established that the excise taxes had been paid on the rum challenged by the Department, the Respondent has been deemed credible. The Respondent's efforts to comply with the beverage laws have been deemed plausible and persuasive.

RECOMMENDATION

Based on 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 imposing an administrative fine in the amount of $250.00 for the failure to display the license in a conspicuous location at the licensed premises.

DONE AND ENTERED this 2nd day of January, 2008, in Tallahassee, Leon County, Florida.

S

J. D. PARRISH 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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 2008.

COPIES FURNISHED:

Michael J. Wheeler, Esquire Department of Business and

Professional Regulation Northwood Centre, Suite 40 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Marie E. Honore

MEP Rags Import and Export 7202 Northwest 35th Avenue Miami, Florida 33147-5832

Marie Edi Honore

13001 Northwest 17th Court Miami, Florida 33167

Steven M. Hougland, Ph.D., Director Division of Alcoholic Beverages

and Tobacco

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Ned Luczynski, 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 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: 07-004601

Orders for Case No: 07-004601