Findings Of Fact At all times relevant hereto, respondent, Willie Coachman, was a licensed beer vendor having been issued license number 39-02165 by petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division). Respondent uses his license at a business known as Willie's Fina Station located at 1312 East Columbus Drive, Tampa, Florida. The license is a Series 1-APS which authorizes Coachman to sell beer by package only for consumption off premises. On August 17, 1988 a Division investigator, Keith B. Hamilton, conducted an investigation of Coachman's licensed premises to determine if respondent was selling beer. He did so since Coachman's license was then under a suspension. After finding the beer coolers sealed with tape, Hamilton left the premises and stood outside the front door. He then observed a black male enter the premises carrying two boxes filled with cartons of cigarettes. The black male gave them to the store clerk, and Hamilton observed the clerk pay the male $80 from the cash register for the cigarettes. The cigarettes were then placed on the floor near Coachman's office. The male was not driving a vendor's truck nor was he dressed in a vendor's uniform. Hamilton telephoned another Division investigator, William P. Fisher, who came to the premises some ninety minutes later. The two entered Coachman's store, identified themselves to a clerk and inspected the stock room. According to Hamilton, Coachman is authorized to buy cigarettes from two area cigarette wholesale distributors, Costco Wholesale Corporation (Costco) and Eli Witt Corporation (Eli Witt). Each wholesaler has a distinctive stamp on its cigarette packages so that an investigator can easily determine from which wholesaler a vendor obtained cigarettes. Upon examining the cigarettes in Coachman's stock room, including the two boxes just sold to the cashier, Hamilton and Fisher noted that approximately 3,137 packs did not have a Costco or Eli Witt stamp. After the clerk could not produce invoices to verify that the cigarettes were purchased from a licensed wholesale dealer, the 3,137 packs were seized and taken to an evidence vault. At that time, the clerk acknowledged that Coachman had authorized her to make cigarette purchases from patrons. Coachman arrived at the premises as the investigators were leaving. He objected to the seizure saying that some of the cigarettes being taken were "good." Coachman was told the cigarettes would be returned if he could produce invoices establishing that they were validly purchased. During the course of the inspection on August 17, investigator Fisher observed nine bottles of Chivas Regal Scotch on a desk in Coachman's office. The bottles were unopened. According to Hamilton, it is unlawful for a beer vendor to have such alcoholic beverages on the premises even for personal consumption. Thus, even though Coachman maintained, without contradiction, that the scotch was for his own use, it was improper for him to store the same on his premises. After the cigarettes were placed in the evidence vault, Coachman produced certain invoices for the Division and also had several wholesalers telephone the Division to confirm various sales to Coachman. This resulted in 540 packs being returned to Coachman. Some 2,502 packs still remain in the Division's custody. At hearing, Coachman indicated that he normally buys some $30,000 to $40,000 of cigarettes monthly from various wholesalers. Also, he offered into evidence various receipts for purchases made in July and August 1988 and documentation verifying that a large quantity of cigarettes was obtained through transfers (exchanges) of cigarettes with other vendors. This latter situation occurs whenever one vendor has a slow-moving brand and exchanges them for a different brand with another vendor. However, each transfer must be documented with paperwork. The Division did not inventory the seized cigarettes by brand or dealer. Its evidence vault receipt, which has been received in evidence as petitioner's exhibit 3, reflected only that 2502 packs of cigarettes were taken. However, by credible testimony it was established that none of the confiscated cigarettes had indicia to show that they were purchased from Costco or Eli Witt. This was not contradicted. On the evening of August 31, 1988 investigator Turner and two informants carried fifteen cases of beer to another licensed premises operated by Coachman. The beer was transported in an unmarked, private vehicle. They offered to sell the beer to Coachman for $4.00 per case but then agreed to sell it for $3.00 per case, which is substantially below the fair and wholesale market value. The sale took place at the house of Coachman's children but Turner was paid with monies from respondent's cash register. Prior to the sale, Division personnel placed special markings on the bottom of the cans for identification purposes so that they could be later identified. On September 6, 1988 investigator Freese went inside respondent's premises and purchased a six pack of Busch beer for $2.69. The package was one of those previously sold to Coachman on August 31. Coachman denied reselling the Busch beer and contended it was purchased for personal consumption and use by his children. However, this testimony is not accepted as being credible. Also, he contended that all cigarettes were legally purchased from wholesalers or by exchange with other dealers and that he had appropriate documentation on hand at all times. However, such documentation was not on hand on the night the cigarettes were taken, and Coachman did not show that any of the cigarettes referred to on the documents supplied at hearing were the same that were seized by the investigators on August 17. Thus, the documentation was not sufficient. Coachman's license has been subject to disciplinary action on two other occasions. It was first suspended for thirty days effective January 6, 1987 for Coachman dealing in stolen property and purchasing cigarettes from other than a wholesale dealer. It was suspended a second time for a twenty day period effective August 9, 1988 for respondent (a) purchasing cigarettes from other than a wholesale dealer, (b) failing to maintain invoices of cigarette purchases on the premises, (c) possessing beverages not permitted to be sold under his license, (d) gambling and possession of gambling paraphernalia, and (e) conducting a prohibited lottery. Under petitioner's policy, as explicated at hearing, a license is revoked after repeat violations occur.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in the notice to show cause, as amended, and that his APS license number 39-02165 be REVOKED. DONE and ENTERED this 23rd day of March, 1989, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1989.
Findings Of Fact As a licensed wholesale dealer in cigarettes, respondent filed monthly tax returns on forms furnished by petitioner. The return respondent filed for July of 1977, was notarized on August 10, 1977, and received by petitioner on August 16, 1977. Accompanying the return was respondent's check drawn in favor of petitioner in the amount of $11,927.69. The return for August, 1977, was notarized on September 9, 1977, and received by petitioner on September 12, 1977. Accompanying this return was respondent's check drawn in favor of petitioner in the amount of $12,995.94. The September, 1977, return was notarized on October 14, 1977, and received by petitioner, at the latest, on October 18, 1977. Accompanying this return was respondent's check drawn in favor of petitioner in the amount of $11,845.44. The return for October, 1977, was notarized on November 10, 1977, and received by respondent on November 14, 1977. Accompanying this return was respondent's check drawn in petitioner's favor in the amount of $9,891.76. The return for November, 1977, was notarized on December 10, 1977, and received by petitioner on December 13, 1977. Accompanying this return was respondent's check drawn in petitioner's favor in the amount of $10,693.80. The return for December, 1977, was notarized on January 10, 1978, and received by petitioner on January 13, 1978. Accompanying this return was respondent's check drawn in petitioner's favor in the amount of $16,678.00. The return for January, 1978, was notarized on February 10, 1978, and received by petitioner on February 20, 1978. Accompanying this return was respondent's check drawn in petitioner's favor in the amount of $8,657.86. The return for February, 1978, was notarized on March 10, 1978, and received by petitioner on March 13, 1978. Accompanying this return was respondent's check drawn in petitioner's favor in the amount of $7,115.49. Beginning in March of 1978, respondent made tax payments whenever its Pitney-Bowes cigarette stamping meter was reset by petitioner's cashier, and payments did not accompany respondent's tax returns thereafter. Respondent's return for March, 1978, was notarized on April 17, 1978, and received by petitioner the following day. The return for April, 1978, was notarized on May 17, 1978, and received by petitioner the same day. The return for May, 1978, was notarized on June 9, 1978, and received by petitioner on June 12, 1978. The return for June, 1978, was notarized on July 10, 1978, and received by petitioner on July 12, 1978. The August, 1978, return was notarized on September 7, 1978, and received by petitioner on September 13, 1978. The September, 1978, return was notarized on October 9, 1978, and received by petitioner on October 11, 1978. The October, 1978, return was notarized on November 7, 1978, and received by petitioner on November 21, 1978. The November, 1978, return was notarized on December 8, 1978, and received by petitioner on December 11, 1978. The December, 1978, return was notarized on January 10, 1979, and received by petitioner the following day. The January, 1979, return was notarized on February 10, 1979, and received by petitioner on February 13, 1979. The February, 1979, return was notarized on March 10, 1979, and received by petitioner on March 20, 1979. The March, 1979, return was notarized on April 10, 1979, and received by Petitioner the following day. The April, 1979, return was notarized on May 10, 1979, and received by petitioner on May 16, 1979. The May, 1979, return was notarized on June 14, 1979, and received by petitioner the following day. The June, 1979, return was notarized on July 24, 1979, and received by petitioner on August 2, 1979. Respondent's check No. 1843, dated March 10, 1977, drawn in petitioner's favor, in the amount of $11,264.20, was dishonored by the drawee for insufficient funds. Respondent's check No. 1833, dated January 10, 1978, drawn in petitioner's favor in the amount of $16,678.20, was dishonored by the drawee for insufficient funds. Respondent's check No. 1259, dated March 30, 1978, drawn in petitioner's favor, in the amount of $3,187.57, was dishonored by the drawee for insufficient funds. Respondent's check No. 1260, dated March 31, 1978, drawn in petitioner's favor in the amount of $105.00 was dishonored by the drawee for insufficient funds. Respondent's check No. 1203, dated February 20, 1978, drawn in petitioner's favor, in the amount of $2,591.19, was dishonored by the drawee for insufficient funds. Respondent's check No. 1261, dated April 17, 1978, drawn in petitioner's favor, in the amount of $2,159.32, was dishonored by the drawee for insufficient funds. Respondent's check No. 1997, dated November 9, 1978, drawn in petitioner's favor in the amount of $617.40, was dishonored by the drawee for the stated reason that respondent's account had been closed. In a post hearing memorandum, petitioner's counsel conceded that respondent had subsequently made all of its checks drawn in favor of petitioner good.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That Petitioner revoke Respondent's permit as a wholesale cigarette dealer. DONE and ENTERED this 31st day of December, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Harold F.X. Purnell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Gray Tobacco Company, Inc. 8109 N.W. 33rd Street Miami, Florida
Findings Of Fact At all times pertinent to the allegations contained in the Notice To Show Cause, Respondent was issued Florida Alcoholic Beverage License 2APS Number 66-248 for the Plaza Grocery located at 2233 North 25th Street, Ft. Pierce, Florida. The parties stipulated, and it is found, that Respondent had the cigarettes as alleged in the Notice To Show Cause in the quantities referred to and that said cigarettes were, in fact, untaxed. The parties further stipulated that on September 15, 1983, during a search conducted by officers of the St. Lucie County Sheriff's Department and the Division of Alcoholic Beverages and Taxation in Respondent's premises, the officers found in the retail rack behind the counter, twenty (20) packages of Salem Menthol 100's, and nine (9) packages of Salem Menthol Light 100's, that were untaxed. The nine (9) packages indicate that one package out of a carton of ten (10) packs was missing. In addition to the above, officers found in a box behind the counter, three (3) cartons of Salem Menthol Light 100's and four (4) cartons of Salem Menthol 100's; all untaxed and mixed in the box with cartons of taxed cigarettes. In a storeroom off from the sales area, officers found fifty-one (51) cartons of Salem Menthol Light 100's and nineteen (19) cartons of Salem Menthol 100's. Detective Alfonzo Washington who has served in that capacity for two (2) years and for the Sheriff's office in other capacities for ten (10) years has known Respondent for twenty- five (25) years. On September 15, 1983, he received a report from a friend who runs a convenience store in that area that someone had offered untaxed cigarettes for sale. Because of his relationship with Respondent, Officer Washington went to the Respondent's store to warn him. Arriving sometime between 11:30 a.m. and noon, Washington talked with Respondent outside the store near his unmarked police car. Washington was in the car and Respondent was outside it. He advised Respondent that if anyone tried to sell him cigarettes to contact him; that he wanted Respondent to, "help me." Washington did not ask Respondent to buy the cigarettes if offered: only to be a lookout and to contact him if anyone offered to sell. Whether there was an actual request or not, it is clear that Respondent thought there was and he acted on what he considered to be the request of a bona fide law enforcement officer. A finding of this nature was subsequently made in Respondent's criminal trial in the same facts and while not binding in this hearing, that court order is of some probative value. Respondent did not, however call Washington when, as it appears, an individual did in fact offer to sell him cigarettes, the cigarettes in question here, later on in the day. Respondent, Boatwright, in addition to running the Plaza Grocery Store, a convenience store which sells mostly dried and prepackaged foods, wine, beer, and cigarettes, operates a fruit harvesting and hauling business. He confirms Washington's story that he was leaving his store approximately noon on September 15 when Washington approached him and asked him if anyone had offered to sell him cigarettes. Boatwright also confirms Washington's testimony that he explained what had happened but contends that Washington asked for his help in solving the case. Respondent agreed that Washington left after a very short conversation and no detailed instructions were given. Respondent then ran some errands, going to the bank, and to a car dealership, arriving back at the grocery store at approximately 2 or 2:30 p.m. While he was working on some equipment in his repair shop in back of the store, a black male who he knew as "Peanut" drove up in a blue and white Cadillac. Peanut asked Respondent if he was interested in buying any cigarettes. This immediately rang a bell with Respondent who then asked Peanut how many he had and how much he wanted. Peanut said he had about eighty (80) cartons and was willing to sell them for $400.00. When Respondent asked if he would take less, Peanut, after talking with the other individual in the car, agreed to sell the entire lot for $300.00. At this point, Respondent advised Peanut he would have to come back later in the day because he, Respondent, did not have that much money with him. If fact, Respondent did have $300.00 with him at the time and contends he used this subterfuge only to allow him time to attempt to get Washington to the store. After talking with his friends in the car, Peanut agreed to come back later and he, Peanut, took the cigarettes which were in unopened cartons packed in two (2) brown boxes, into the store and in the storeroom where Respondent told him to put them. This was approximately 3:00 p.m. in the afternoon. The cigarettes were placed just inside the storeroom door next to some groceries, completely out in the open. After depositing the cigarettes, Peanut indicated that he would be back between 4:00 and 5:00 p.m. Respondent contends that he expected Officer Washington to come by on his way home from work somewhere around 4:00 p.m. Washington agreed that he, usually, got off work and passed by the Plaza Grocery on his way home and that he sometimes stopped in to talk with Respondent. However, while Washington indicated he failed to come in more than he stopped in, Respondent contends that Washington stopped in more often than not and that it was because of this that he did not call Washington intending to see him on the way home. He indicates that if Washington went by without stopping, he was going to call Washington at home and have him come over to be there when Peanut returned. On balance, it would appear Respondent is in error here. As it happened, however, approximately a half an hour after Peanut left, beverage agents and sheriff's department detectives, as their last stop in their check of several area convenience stores for the stolen cigarettes, came into the store while Respondent was outside talking. The agents came up in a brown car and Respondent thought it was relating to fruit harvesting. Respondent went inside the store to see what the agents wanted and found that several of the officers, including Officer White, had already gone behind the counter to the cigarette rack. At this point Respondent asked what was the problem. White replied that he wanted to check cigarettes and when White asked who Respondent bought the cigarettes from, Respondent who did not know who any of these people were replied, the Eli Witt Company. When one detective asked him if he had any more cigarettes, he said "yes" and attempted to show him where the cigarettes were in the storeroom. Ultimately the detectives advised Respondent of his right to remain silent, but he waived this right and fully explained what had happened. When Investigator White, a new beverage agent with whom respondent was not familiar, found cigarettes that were untaxed in the cigarette retail rack, he advised Respondent of his testimonial rights and Respondent indicated a desire to make a statement. In this statement, respondent reiterated the story outlined above to the effect that Washington had approached him earlier in the day to solicit his help in watching for untaxed cigarettes. He then went on to indicate the story of how Peanut had come and left the cigarettes there. September 15, 1983 was on a Thursday. The following Sunday, Investigators Young's wife called White and indicated that Respondent had called her in an effort to talk to Young. White called Respondent back and was told by Respondent that Peanut had come back that day in another car to threaten him into either returning the cigarettes or paying for them. Respondent advised White that he had a partial tag number and a description of the vehicle. He also advised White that he had reported this to the Sheriff's Department through the 911 number. At this, White advised Respondent to keep an eye out and to call if anything else developed. The cigarettes in the retail rack were in plain view and were not hidden as were the cigarettes in the box behind the counter. Investigator White confirms Respondent's story that the cigarettes in the storeroom were not hidden and were left out in the boxes with the end labels of each carton showing. This was somewhat contradicted by the testimony of Petitioner's rebuttal witness, Detective Williams from the County Sheriff's office, who stated that the cigarettes were somewhat concealed. Nonetheless, it would appear that the cigarettes were not concealed and there is no evidence to show that Respondent attempted to hide the cigarettes or make them unavailable to the investigating officers. In fact, it appears the cigarettes were where Peanut had left them with the exception of those few cartons taken from the storeroom and put into the retail rack behind the counter. In that regard, Respondent denies having moved the cigarettes and contends his five (5) employees denied moving them. It is clear that they were moved, however, more likely by an employee who now denies it.
The Issue Whether proposed Rules 61A-7.003, 61A-7.007, 61A-7.008, and 61A-7.009 constitute invalid exercises of delegated legislative authority, pursuant to Section 120.52(8), Florida Statutes,1/ for the reasons described by Petitioner in its Petition.
Findings Of Fact Petitioner and Intervenor are companies whose substantial interests will be affected by the proposed rules and they have standing to bring this rule challenge. The State of Florida, Department of Business and Professional Regulation (the Department), is the state agency responsible for adopting the proposed rules which are the subject matter of this proceeding. The Division of Alcoholic Beverages and Tobacco (the Division) is vested with general regulatory authority over the alcoholic beverage industry within the state. The Division issues both general and special alcoholic beverage licenses. See Chapters 561-565, Fla. Stat. The general licenses which permit consumption on the premises are: 1COP licenses which permit consumption of beer and certain wine and distilled spirit products; 2COP licenses which permit consumption of beer, wine, and certain distilled spirit products; and 4COP licenses which permit the consumption of beer, wine, and all distilled spirits. See §§ 563.02(1)(b)-(f), 564.06(5)(b), and 561.20(1), Fla. Stat. The 4COP licenses are known as quota licenses, are issued based on the population of the county, and are limited in number. § 561.20(1), Fla. Stat. Quota liquor licenses range in value, depending on the county involved, from a low of approximately $20,000, to a high of approximately $300,000. (stipulation of parties) The SBX or special bowling license is issued by the Division pursuant to Section 561.20(2)(c), Florida Statutes. The owner or lessee of a bowling establishment having 12 or more lanes and necessary equipment to operate them may obtain this special license which permits consumption of beer, wine, and distilled spirits. Alcohol can only be sold for consumption on the licensed premises. Another special alcoholic beverage license listed in proposed Rule 61A-7.003 is the 12RT license. The holder of such a license must be a caterer at a dog track, horse track, or jai alai fronton. In this context, Section 565.02(5), Florida Statutes, reads in pertinent part as follows: (5) A caterer at a horse or dog racetrack or jai alai fronton may obtain a license upon the payment of an annual state license tax of $675. Such caterer’s license shall permit sales only within the enclosure in which such races or jai alai games are conducted, and such licensee shall be permitted to sell only during the period beginning 10 days before and ending 10 days after racing or jai alai under the authority of the Division of Pari- mutual Wagering of the Department of Business and Professional Regulation is conducted at such racetrack or jai alai fronton. . . . Petitioner participated, to some degree, in the rule development process. The extent of that participation is unclear from the record. The text of the proposed rules as published in their final form in the Florida Administrative Weekly on October 10, 2003, is as follows: 61A-7.003 Premises Not Eligible For Smoking Designation. Licensed premises shall not be designated as a stand-alone bar if the qualifications for licensure require the premises be devoted predominantly to activities other than the service of alcohol. The following licenses are not eligible for a stand-alone bar designation: S = Special Hotel SH = Special Hotel in counties with population of 50,000 or less SR = Special Restaurant issued on or after January 1, 1958 SRX = Special Restaurant SBX = Special Bowling SAL = Special Airport SCX = Special Civic Center SCC = Special County Commission SPX = Pleasure, Excursion, Sightseeing, or Charter boats X = Airplanes, Buses, and Steamships IX = Railroad Cars XL = Passenger Waiting Lounge operated by an airline PVP = Passenger Vessels engaged in foreign commerce FEX = Special Public Fairs/Expositions HBX = Special Horse Breeders HBX = Special County Commission 11AL = American Legion Post permitted to sell to general public 11C = Social, Tennis, Racquetball, Beach, or Cabana Club 11CE = Licensed vendors exempt from payment of surcharge tax 11CS = Special Act Club License 11CT = John and Mable Ringling Museum 11GC = Golf Club 11PA = Symphony, Live Performance Theatre, Performing Arts Center 12RT = Dog or Horse Track or Jai Alai Fronton 13CT = Catering Specific Authority 386.2125, 561.695(9) FS. Law Implemented 386.203(11), 561.695 FS. History--New 61A-7.007 Formula For Compliance With Required Percentage of Gross Food Sales Revenues. In order to determine compliance, the division shall use the formula of gross food sales revenue, including but not limited to non-alcoholic beverages, divided by gross total sales revenue, in any consecutive six- month period. The results of the formula will represent the percentage of food sales revenues as defined herein and in s. 561.695, Florida Statutes. Specific Authority 386.2125, 561.695(9) FS. Law Implemented 386.203(11), 561.695(6) FS. History--New 61A-7.008 For Percentage of Gross Alcohol Sales Revenue Formula. In order to determine compliance, the division shall use the formula of gross alcohol sales revenue divided by gross total sales revenue, in any consecutive six-month period. Specific Authority 386.2125, 561.695(9) FS. Law Implemented 386.203(11), 561.695(6) FS. History--New 61A-7.009 Method Used to Determine Whether an Establishment is Predominantly Dedicated to the Serving of Alcoholic Beverages. In order to determine whether an establishment, other than one holding a specialty license designated in Rule 61A- 7.003, F.A.C., is predominantly dedicated to the serving of alcoholic beverages, the division shall compare the percentage of gross food sales revenue with the percentage of gross alcohol sales revenue. If the percentage of gross alcohol sales revenue is greater than that of the gross food sales revenue, an establishment is deemed predominantly dedicated to the serving of alcoholic beverages. Specific Authority 386.2125, 561.695(9) FS. Law Implemented 386.203(11), 561.695(1)(9) FS. History--New Article X, Section 20, Florida Constitution, was adopted by the electorate in 2002, and generally prohibits smoking in enclosed indoor workplaces. This constitutional provision includes certain exceptions from this general prohibition including the "stand-alone bar" exception. Section 20(d) instructs the Florida Legislature to adopt legislation to implement its provisions and specifies that the Legislature is not precluded from enacting any law constituting or allowing a more restrictive regulation of tobacco smoking than is provided in Section 20. The legislature implemented the constitutional amendment by amending Part II, Chapter 386, Florida Statutes. Section 386.204 prohibits smoking in enclosed indoor workplaces, except as provided in Section 386.2045. Section 386.2045 enumerates exceptions to the general prohibition, including the exception of a stand-alone bar. Section 386.2045(4), Florida Statutes, reads as follows: (4) STAND-ALONE BAR- A business that meets the definition of a stand-alone bar as defined in s. 386.203(11) and that otherwise complies with all applicable provisions of the Beverage Law and this part. A stand-alone bar is defined in Section 386.203(11) as follows: (11) 'Stand-alone bar' means any licensed premises devoted during any time of operation predominately or totally to serving alcoholic beverages, intoxicating beverages, or intoxicating liquors, or any combination thereof, for consumption on the licensed premises; in which the serving of food, if any, is merely incidental to the consumption of any such beverage; and the licensed premises is not located within, and does not share any common entryway or common indoor area with, any other enclosed indoor workplace, including any business for which the sale of food or any other product or service is more than an incidental source of gross revenue. A place of business constitutes a stand-alone bar in which the service of food is merely incidental in accordance with this subsection if the licensed premises derives no more than 10 percent of its gross revenue from the sale of food consumed on the licensed premises. Deborah Pender is the chief of licensing for the Division. According to Ms. Pender, the Division included the SBX or special bowling license in the list of special licenses that cannot qualify for stand alone bar status in proposed Rule 61A- 7.003 because its predominant business is a bowling alley. Similarly, the 12RT license was included because its predominant business is a racetrack: "Because that’s a specialty license that is issued at race tracks, and if it wasn’t a race track business, the caterer . . . couldn’t have a license anywhere else." Marie Carpenter is the chief of the Bureau of Auditing of the Division. According to Ms. Carpenter, the provision regarding the six consecutive months in proposed rules 61A-7.007 and 61A-7.008 was intended to give the Division enough of a period of time to get a good picture of whether the business met the criteria for compliance and to give licensees an opportunity to build up business records that were not previously required to be kept.2/ The licensee would be required to keep daily records. Ms. Carpenter acknowledged that in using the six month auditing period in the proposed rule, a licensee could exceed the 10 percent requirement on one or more occasions during the audit period. Sandy Finkelstein is President of Petitioner and is the operating partner of Shore Lanes Bowling Center in Merritt Island, Florida. According to Mr. Finkelstein, there is at least one bowling facility in Florida that was issued a 4COP license. A bowling facility with a 4COP license is not automatically excluded from the stand-alone bar designation, whereas a bowling facility with an SBX license is automatically excluded from the stand-alone bar designation by virtue of proposed rule 61A-7.003.
Findings Of Fact Respondent Yazgi has an ownership interest in respondent Stop N Shop and is the only individual named on respondent Stop N Shop's license. Respondent Yazgi has a one-third interest in a different store at a different location in Jacksonville, which is also called Stop N Shop. Sometime before noon on October 15, 1976, Mr. Yazgi took one carton of Winston menthol cigarettes and one carton of Silver Thin cigarettes from this second store and transferred them to respondent Stop N Shop where they were offered for resale and where petitioner's agents discovered them, except for one package which was missing. The store from which respondent took the cigarettes is not a licensed cigarette wholesaler.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner impose a civil penalty against respondent in the amount of one hundred dollars ($100.00) DONE and ENTERED this 6th day of December, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Tom Yazgi c/o Stop N Shop 2039 West 12th Street Jacksonville, Florida Mr. J. M. Ogonowski District 3 Department of Business Regulation 1934 Beachway Road Jacksonville, Florida 32207 Mr. Francis Bayley, Esquire Department of Business Regulation Legal Section Johns Building 725 South Bronough Street Tallahassee, Florida 32304
The Issue Whether respondent's alcoholic beverage license should be disciplined on charges that she, her agent or employee, purchased cigarettes for retail from other than a wholesaler, failed to maintain invoices for cigarette purchases on the premises for three years, and possessed on the premises lottery tickets or paraphernalia used in connection with a lottery.
Findings Of Fact Respondent holds alcoholic beverage license No. 23-3145, Series 2-APS, and operates a business known as Shirley's Grocery at 5500 Northwest 17th Avenue, Miami, Florida (Testimony of John Harris; P-4, P-6) Based on information received from a confidential informant, Beverage Officer Carol Houston conducted an inspection of respondent's licensed premises on October 2, 1981. Officer Houston, accompanied by two other beverage officers, identified herself to Willie Mae Robinson, an employee behind the cash register. Officer Houston then examined the beverage license displayed on the wall and began checking cigarette tax meter numbers on the cigarettes displayed for sale behind the counter. (Testimony of Houston) The officers questioned Ms. Robinson about a padlocked cabinet located in the southeast portion of the premises, the area where alcoholic beverages were stored. She disclaimed any knowledge of the packaged cigarettes which were visible through the locked cabinet doors. The officers opened the cabinet with a key from the cash register and found 837 packages of cigarettes and a shotgun. The cigarette packages were marked with tax meter numbers which DABT had previously assigned to Atlantic Tobacco Company, The Southland Corporation, Eli Witt Company, Winn Dixie Stores (which do not wholesale cigarettes) and Miami Tobacco Company. (Testimony of Houston; P-2) Ms. Robinson, who could produce no invoices for these cigarettes, called respondent Shirley Donovan to the premises. Ms. Donovan stated she had no invoices for the cigarettes, which she said belonged to her night manager, Willie Lovette. (She later executed a sworn statement to this effect.) Mr. Lovette was then called to the premises and signed a sworn statement that he bought the cigarettes, for resale, from two unidentified black males while working at the licensed premises on September 28, 1982. (Testimony of Houston; P-5, P-6) The cigarettes were partially visible through the locked cabinet doors, the cabinet was in full view in the alcoholic beverage storage area of the licensed premises, and the key in the cash register opened the cabinet. These facts support an inference that respondent either knew of the illicit cigarettes or failed to diligently supervise the licensed premises. Before leaving the licensed premises on October 2, 1981, Officer Houston served respondent with a written notice that DABT rules require that cigarette invoices be retained on the licensed premises. The packages of cigarettes found in the cabinet were then seized and placed in the DABT evidence vault. (Testimony of Houston; P-3, P-7) On October 15, 1981, Officer Houston and Beverage Officer Edward Pfitzenmaier returned to respondent's licensed premises to serve notice of the Division's intent to file administrative charges relating to the October 2, 1981 inspection. Willie Mae Robinson, again behind the cash register, summoned respondent who, when questioned, stated that she bought cigarettes only from Cantors, Miami Tobacco Company and, on one occasion, from Eagle Discount. Cantors and Miami Tobacco Company were cigarette wholesalers; Eagle Discount was not. Invoices on the premises substantiated cigarette purchases from Cantors on August 10, 17, 18, 19, 20, and October 2, 11, 14, 1981. (Testimony of Houston, Pfitzenmaier) Further inspection of the cigarettes on display behind the-cash register disclosed 476 cigarette packages which bore cigarette tax meter numbers previously assigned by DABT to the following businesses: 41597 - Atlantic Tobacco Company 43936 - Winn Dixie Stores, Inc. 40501 - Eckerd Tobacco Company 41247 - Two Brothers Tobacco Company 43025 - The Southland Corp. 40875 - Eagle Family Discount 41851 - Eagle Family Discount 46087 - The Southland Corp. Respondent could produce no invoices for these cigarettes, some of which bore the same meter numbers as the packages found on the premises in the locked cabinet on October 2, 1981. The cigarettes were seized by Officer Houston and placed in the DABT evidence vault. (Testimony of Houston, Pfitzenmaier; P-7) During the October 15, 1982, inspection and search for invoices on the licensed premises, Officer Pfitzenmaier found numerous slips of paper, booklets and calendars in a cigar box and loosely scattered behind the counter. The calendars were marked for different dates with numbers in series. The booklets, including "King Tut's Dream Book," contained various numerical listings based upon such topics as horoscopes, lucky days, lucky numbers, and racing results. Such materials are commonly used in connection with lotteries. The markings support an inference that these materials had been used or were being used in connection with a lottery. They were seized by Officer Pfitzenmaier and placed in the DABT evidence vault. (Testimony of Pfitzenmaier; P-8) On at least three previous occasions, DABT fined respondent for purchasing cigarettes from other than a wholesaler and for failing to maintain, on the premises, invoices for cigarette purchases. On the third occasion, DABT also suspended her license. (Testimony of Houston)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license no. 23-3145 Series 2-APS, be revoked. DONE AND RECOMMENDED this 11th day of February, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 1983.
The Issue The issues for resolution in this proceeding are whether the Respondent committed the violations alleged in an administrative complaint, as amended, and if so, what discipline is appropriate.
Findings Of Fact Respondent, Mano's, Inc., doing business as Sea Port (Mano's) is now and has at all relevant times been a licensee of the Division of Alcoholic Beverages and Tobacco (DABT) holding a 4 COP SRX special restaurant license. Mano's operates a restaurant and lounge located in Cape Canaveral, Brevard County, Florida. Mano's license requires that at least 51 of its gross retail sales be served from food and non-alcoholic beverages. Mano's license application clearly acknowledges this and the requirement that it maintain a bona fide restaurant with 4000 square feet of floor space and seating for 200 patrons. Raymond Joseph Cascella is the president, sole corporate officer, and sole stockholder of Mano's. Attached to his license application dated May 14, 1991, is his sketch of the licensed premises. The instructions on the application provide that the sketch must include all specific areas which are part of the premises sought to be licensed. The sketch provided by Mr. Cascella includes the bar, restrooms, dining rooms, and kitchen. On September 10, 1996, Sam Brewer, then a special agent with DABT, conducted an inspection of Mano's licensed premises. Special Agent Brewer found several violations on his visit; he spoke with Mr. Cascella and gave Mr. Cascella a copy of the inspection report and three notices related to the violations. The violations observed and noted by Special Agent Brewer were improper display of the facility license (in the office rather than conspicuously displayed), insufficient seating (160 seats rather than 200), and failure to maintain sales receipts or other records to document that the 51 percent non- alcoholic beverages and food requirement was met. One of the notices provided to Mr. Cascella stated that no later than September 25, 1996, he must bring to the Rockledge DABT office records pertaining to total sales of food, non- alcoholic, and alcoholic beverages for the period June 1, 1996, through September 10, 1996. Mr. Cascella came to the Rockledge office on September 25, 1996, but the records he brought were computerized summaries of credit card transactions and did not reflect a break-out of sales of alcoholic beverages and non-alcoholic beverages and food. There were no guest receipts nor register tapes (also called "z-tapes") provided. On September 30, 1996, Special Agency Brewer issued another notice to Mano's. The notice, signed by Mr. Cascella, directs the licensee to produce these records to the Rockledge DABT district office no later than October 15, 1996, or administrative changes would be brought against the alcoholic beverage license: All records relating to gross retail sales of food and non-A/B and all records relating to gross retail sales of A/B (including source documents) (i.e., Z-tapes, waitress order checks), for the period June 1, 1996 thru September 10, 1996. All records relating to purchases of food and non-A/B and all records relating to purchases of A/B, for the period June 1, 1996, thru September 10, 1996. (Petitioner's Exhibit No. 4) Mr. Cascella returned to the Rockledge office on October 15, 1996, with a box of papers. These papers were records of purchases made from different vendors but there were no records of any retail sales by Mano's. In spite of letters to Special Agent Brewer from Mano's counsel promising full compliance and in spite of Mr. Cascella's several efforts, Mr. Cascella never produced all of the required records for the relevant period (June 1, 1996 through September 10, 1996). At the hearing in this proceeding Mr. Cascella submitted a large plastic ziplock bag stuffed with register receipts from June 1, 1996, through September 10, 1996. Mr. Cascella thought he had shown these or copies to Special Agent Brewer but was not sure. Mr. Cascella also conceded that the tapes were not complete, as they were only from the cash register at the bar, and none were from the register in the restaurant. Thus, the receipts reflected mostly liquor sales for each day, and very little food. (Transcript pp. 231-238) On February 7, 1997, Special Agent Brewer sent an official notice to Mano's informing the licensee that DABT intended to file administrative charges for failure to produce records as requested, in violation of Section 561.29(1)(j), Florida Statutes. On March 8, 1997, Special Agent Brewer, two other DABT agents, and several officers or agents from other law enforcement agencies appeared at Mano's licensed premises in Cape Canaveral. Mr. Cascella, who lived upstairs with his wife, was summoned by the bartender and came downstairs immediately. Mr. Cascella was very upset and told the officers that they had no right to be there without a search warrant. Throughout the inspection he remained very vocal and argumentative. Special Agent Brewer was looking for food items as part of his inspection and he requested that Mr. Cascella grant access to a locked area within the kitchen, a walk-in cooler or freezer. When Mr. Cascella refused, Special Agent Brewer informed him that the refusal was a violation of the law and he could be arrested. Eventually during the inspection the agents gained access to the area only after they cut the lock. Mr. Cascella was arrested for his refusal to stop interfering with the inspection and for his persistent and obstreperous comments during the agents' questioning of the bartender. Between October 1996, and December 1996, Jane Davis, an auditor with DABT conducted a surcharge audit of Mano's for the period July 1, 1993, through June 30, 1996. Mr. Cascella was cooperative and had the records available for Ms. Davis' review. She did not conduct an SRX audit requested by Special Agent Brewer, as she was being transferred from Rockledge to Lakeland and she could not take on the task of reviewing all of the Z- tapes for a long period of time. The surcharge audit Ms. Davis conducted was for a purpose different from the determination of percentage of alcohol sales and non-alcohol sales; her audit period, and consequently the records she reviewed, were not the June 1, 1996, through September 10, 1996, period addressed in the notices of violation issued by Special Agent Brewer.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the agency enter its final order finding that Respondent violated Rule 61A-3.0141, Florida Administrative Code, and Section 562.41(3), Florida Statutes, and imposing civil penalties of $250 and $1,000, respectively, for a total of $1,250. DONE AND ENTERED this 29th day of August, 2000, in Tallahassee, Leon County, Florida. MARY CLARK 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 29th day of August, 2000. COPIES FURNISHED: James D. Martin, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Allen C. D. Scott, II, Esquire Scott & Sheppard, P.A. 101 Orange Street St. Augustine, Florida 32084 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Joseph Martelli, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact On November 2, 1979, petitioner's Officer Favitta visited respondent's premises in order to notify respondent that his beverage license had been suspended for failure to pay a civil penalty. While on the premises, Officer Favitta discovered a display rack full of cigarette packages stamped in red ink with a certain meter number. He confiscated 936 packages of cigarettes so stamped from the display rack. Other packages of cigarettes in a storage room nearby were similarly imprinted. The meter number appearing on each cigarette package had been assigned to Barone Sales, a wholesale dealer in cigarettes who sells cigarettes marked in this fashion to the Seminole Indians. Red ink is used to signify that cigarette tax has not been paid and that the cigarettes are destined for the reservation. Respondent admitted to Officer Favitta buying the cigarettes on the reservation, but argued that this was lawful so long as no more than three cartons were purchased at one time.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent dismiss the notice to show cause. DONE and ENTERED this 29th day of July, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: James M. Watson, Jr., Esquire 725 South Bronough Street Tallahassee, Florida 32301 Michael R. Shinn 244 S.W. 3rd Place Dania, Florida 33004
The Issue The issue in this case is whether Respondent, Department of Business and Professional Regulation, Division of Alcoholic Beverages & Tobacco (the “Department”), is operating under an unadopted rule in its application of sections 210.276 and 210.30, Florida Statutes, which impose a surcharge and an excise tax, respectively, on tobacco products other than cigarettes or cigars, commonly known as other tobacco products (“OTP”), by calculating “wholesale sales price” as the full invoice price charged by OTP manufacturers to distributors, including any federal excise taxes (“FET”) and shipping charges reflected in the invoice price.
Findings Of Fact Each of the Petitioners is a licensed business in the State of Florida engaged in the business of distributing tobacco products. The Department is the government agency responsible for, inter alia, administering and enforcing chapter 210, Florida Statutes, related to the taxation of tobacco products other than cigarettes and cigars. By way of general background, tobacco products are taxed at both the federal and state levels. The first company to produce or import the tobacco products into the United States must pay the federal government a federal excise tax which is based on weight. 26 U.S.C. § 5702. Similarly, when the tobacco is produced or brought into Florida, Florida OTP tax applies at the rate of 85 percent of the “wholesale sales price.” Technically, Florida OTP tax has two components: an excise tax and surcharge as defined by sections 210.30 and 210.276. Section 210.30 was first enacted in 1985; it imposes a 25-percent tax on OTP. Section 210.276 was enacted in 2009; it levies a 60-percent surcharge on OTP. For convenience, the excise tax and surcharge will be referred to collectively as the OTP tax. The phrase “wholesale sales price” is defined as “the established price for which a manufacturer sells a tobacco product to a distributor, exclusive of any diminution by volume or other discounts.” § 210.25, Fla. Stat. Section 210.25(11) defines "tobacco products" as follows: [L]oose tobacco suitable for smoking; snuff; snuff flour; cavendish; plug and twist tobacco; fine cuts and other chewing tobaccos; shorts; refuse scraps; clippings, cuttings, and sweepings of tobacco, and other kinds and forms of tobacco prepared in such manner as to be suitable for chewing, but ‘tobacco products’ does not include cigarettes . . . or cigars. In 2012, the Second DCA interpreted “wholesale sales price” to apply to the price at which the manufacturer sells tobacco products to the distributor. Micjo, 78 So. 3d at 127. In that case, in which the Second DCA described the dispute as “not complicated,” the Court determined that OTP tax applies only to the charge for tobacco and not to other charges to bring the tobacco to market, such as FET and shipping charges. Id. at 126-127. There are no relevant adopted rules in which the Department has interpreted “wholesale sales price.” State agencies are required to follow the Courts’ interpretations of statutes. See Costarell v. Fla. Unemplmt. App. Comm’n, 916 So. 2d 778, 782 (Fla. 2005). Subsequent to the ruling in Micjo, the Department followed the ruling set forth by the Second DCA and stopped imposing a tax on distributors based upon on FET or shipping charges. Beginning in 2013, the Department commenced enforcing a new “policy” interpreting Micjo to exclude FET and shipping charges only when such charges were separately stated. As a result of this policy, the Department paid some refunds and did not assess OTP tax if the FET and shipping charges were separately stated. The Department began relying upon a new policy in mid- 2013 to the effect that if the domestic manufacturer of the tobacco paid FET when it produced the product, Micjo did not apply and the phrase “wholesale sales price” included non- tobacco charges, such as FET and shipping charges. This was due to the fact that the manufacturer would pass down the cost of the FET and shipping charges to the distributor as part of the “wholesale sales price.” As for foreign manufacturers who did not pay FET, Micjo operated to exclude FET and shipping charges from the taxable base. That is because the distributor who purchased the tobacco products would be responsible for paying the FET separately; it would not be part of the “wholesale sales price.” In other words, the Department’s policy was that “wholesale sales price,” as interpreted by Micjo, applies differently depending on whether the tobacco is manufactured foreign or domestically. The Petitioners seek to invalidate this non-rule policy. The Department confuses wholesale sales price (i.e., “the established price for which a manufacturer sells a tobacco product to a distributor”) with the invoice amount, which may or may not include something other than the price for the tobacco product. The Micjo decision clearly delineates the cost of the tobacco from “the various other distributor invoice costs for reimbursement of FET, shipping costs, and other charges [which are] not part of tobacco.” Micjo, 78 So. 3d at 127. After the Micjo ruling, the Department determined that it would not include FET and shipping charges in its determination of “wholesale sales price” for purposes of calculating OTP taxes. It did not promulgate a rule to that effect, but began nonetheless using the policy uniformly. In early October 2013, when the Department decided to rescind its policy in favor of a new statement of general applicability, it again failed to promulgate the policy as a rule. Instead, it unilaterally began to impose the new policy on all distributors of OTP in the state. It is clear from the record that the current policy is applicable to all distributors and that the policy delineates which distributors must pay taxes based on total invoice amounts, including FET and shipping charges, and which distributors do not have to pay taxes based on those items. It is not clear from the record how the domestic versus foreign manufacturer dynamic was argued to the Micjo Court or in the case from which the appeal arose. Micjo specifically addressed the domestic distributors, but did not make a distinction between domestic and foreign manufacturers. To the extent the Department’s position in the instant case seeks to revise the facts of Micjo, that argument is rejected.
