The Issue Whether the Respondents committed the violations alleged in the Administrative Action dated June 22, 2004, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Division is the state agency charged with administering Florida's alcoholic beverage and tobacco law. § 561.02, Fla. Stat. (2004). The Food Mart holds a Series 2-APS license, numbered 16-13705. On June 2, 2004, the Division conducted an inspection of the premises of the Food Mart. The inspector found six bottles filled with a cream-colored liquid. One bottle was on the counter, next to the cash register, and the other five bottles were inside a cabinet behind the cash register, wrapped in newspaper. The bottles contained a homemade Haitian beverage called cremasse. A friend made the beverage for Mr. Cebatien Dierestil, who intended to serve the beverage at a party at his home. The person who made the beverage took the six bottles to the Food Mart to give it to Mr. Dierestil, but Mr. Dierestil was not in the store at the time. A Food Mart employee placed the bottle of cremasse on the counter, even though it was for Mr. Dierestil's personal use. Cremasse contains a small amount of alcohol, but Mr. Dierestil did not know the exact amount. During the inspection of Food Mart on June 2, 2004, the Division found 97 packages of cigarettes offered for sale that did not carry the stamps indicating that the applicable taxes had been paid on the cigarettes. Some of the 79 unstamped packages of Newport cigarettes and of the 18 unstamped packages of Marlboro cigarettes were commingled with other packages of cigarettes displayed over the cash register, and others were in full cartons placed in the area where the extra inventory of cigarettes was kept. The cigarettes were purchased from a person that came by the Food Mart, and the invoice for the cigarettes was not among the invoices Mr. Dierestil provided to the Division's inspectors. Mr. Dierestil was not aware that the cigarette packages were supposed to carry tax stamps. The Division failed to present evidence establishing the alcoholic content of the liquid inside the bottles found at the Food Mart.
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 Dismissing Count 1 of the Administrative Action against Cebatien and Marc Dierestil; Finding that Cebatien and Marc Dierestil violated Sections 210.18(1) and 210.15(1)(h), Florida Statutes; Finding that, because of these statutory violations, the Division is authorized to impose administrative penalties on Cebatien and Marc Dierestil pursuant to Section 561.29(1) and (3), Florida Statutes; Imposing an administrative fine in the amount of $500.00 and ordering payment of the excise tax owing on the unstamped packages of cigarettes for the violation of Section 210.18(1), Florida Statutes; and Imposing an administrative fine in the amount of $1,000.00 for the violation of Section 210.15(1)(h), Florida Statutes. DONE AND ENTERED this 27th day of January, 2005, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO 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 27th day of January, 2005.
The Issue The first issue presented is whether Respondent failed to derive at least 51 percent of its gross revenue from sales of food and non-alcoholic beverages during the period of September 1, 1999 through October 31, 1999, contrary to Section 561.20(2)(a)4, Florida Statutes, and Rule 61A-3.0141, Florida Administrative Code. The second issue presented is whether during the period of November 1, 1999, through October 31, 1999, Respondent failed to maintain and/or produce separate records of all purchases and gross retail sales of food and non-alcoholic beverages and all purchases of gross retail sales of alcoholic beverages, to wit: numerous register summaries, Z tapes, contrary to Section 561.20(2)(a)4, Florida Statutes, and Rule 61A-3.0141, Florida Administrative Code. The third issue presented is whether during the period of April 1, 1999, through May 31, 1999, the Respondent failed to maintain and/or produce separate records of all purchases and gross retail sales of food and non-alcoholic beverages and all purchases of gross retail sales of alcoholic beverages, to wit: records provided failed to include cash bar sales, contrary to Section 561.20(2)(a)4, Florida Statutes, and Rule 61-3.0141(3) (a)2, Florida Administrative Code.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner, the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, is the agency charged with the responsibility of administering and enforcing the beverage law of the State. Chapters 561-568, Florida Statutes. At all times material to this proceeding, Respondent, Dawson, Fabrizzi, & Fletcher, Inc., d/b/a C.J. Oscars, operated a licensed restaurant business located at 1502 Miramar Street, Cape Coral, Florida, 33904. The corporate officers are Charles Dawson, president; Albert N. Fabrizzi, Vice-President; and Jack Allen, manager of C. J. Oscars. At all times material to this proceeding, Respondent applied for and was holding a series SRX4COP Alcoholic Beverage License Number 46-04601, which authorized the sale of beer, wine, and liquor for consumption on the licensed premises of the restaurant business. The designation "SRX" identifies a beverage license issued to a business operating [primarily] as a restaurant. Respondent's SRX license authorized the sale of alcoholic beverages on the premises, so long as at lease 51 percent of the gross revenue is derived from the sale of non-alcoholic beverages and food. Respondent was made aware of the 51 to 49 percent gross revenue requirement when Charles Dawson applied for the SRX license. Indeed, the application for the SRX license,1 signed by Charles Dawson, specifically noted these requirements and the necessity to maintain a record of compliance. Accordingly, Charles Dawson knew, or should have known, that he would need purchase and sale records to show, upon demand, the SRX-imposed percentage requirements were met by the licensee. Required statutory and rule compliance are made known to each SRX license holder and are strictly imposed upon each licensee.2 Section 561.20(2)(a)4, Florida Statutes, and Rule 61A-3.0141, Florida Administrative Code, clearly and unequivocally states that records of all purchases and gross retail sales are required to be kept, in legible English language, by each licensee and are made available upon demand by the DABT. To enforce the above requirements, DABT performs periodic audits of all restaurants holding a special SRX license. As a part of that audit process, Special Agents from DABT conduct undercover visits and announced visits, as is its normal custom and practice. Between May and October 1999, Steven Tompkins, District Supervisor, Fort Myers office, DBAT, testified to making undercover visits to C.J. Oscars Restaurant on five to fifteen different occasions. During one or more of those visits, he observed Monday night drink specials where patrons who spent $5.00 on any combination of food/drink were given a plastic cup along with their initial order. Thereafter, and for the remainder of the evening, drinks were sold to cup holders for $0.25 per drink. On several other occasions, he observed money paid at the bar for cash sales of alcoholic drinks go directly into the pocket of the bartender, Mr. Allen. On other occasions, he observed Mr. Allen ring-up money on the bar cash register for both food and alcoholic drinks. On occasions while he sat at the bar, he observed cash sale money rung up on the cash register and the actual receipt of the sale thrown into an ice bucket under the bar. Mr. Tompkins, based upon his 25 years of experience, his observations, personal purchases and knowledge of the business operation, believed that Respondent was selling more alcoholic beverages than food. Ms. Debra Martin initially visited Respondent's restaurant on or about May 19, 1999, and after identifying herself as an agency employee requested access of food purchase records for April and May 1999 and was informed that the requested records were kept off premises.3 Ms. Martin testified that during September 1999 she requested bank statements and guest checks. Respondent could not provide guest check, and informed Ms. Martin that some guest checks were no longer kept. Ms. Martin's request for "Z" tapes went unanswered at that time. The Agency introduced in evidence Respondent's income statement4 for the four-month period, January 1, 1999, through May 31, 1999, which indicated that Respondent sold 51.20 percent alcohol and 48.80 percent food during that four-month period of time. David Cary (Respondent's bookkeeper) testified that C.J. Oscars had opened the business the third week of March 1999, and Respondent's income statement related to the nine-week period from the third week of March 1999 to May 31, 1999. Mr. Cary testified that C.J. Oscars had met its required sale percentages for the eight-week period of April 1, 1999, through May 31, 1999. Jack Allen, III, manager of C.J. Oscars, and Michael Batson, register expert, both testified that register Z tapes record each register transaction in sequential numbering, with the initials G.T., meaning grand total. Both witnesses testified that the register records a running total of the purchases entered and this information is recorded on the Z tapes of each register. Mr. Allen, regarding missing Z tapes, testified that during a new employee training, the trainee would practice register operation by running a Z tape, and he limited a new employee's training sessions to use of only two Z tapes. Mr. Allen concluded his testimony by stating that cash bar receipts were often thrown into a bucket on the bar, and as bar manager he would check the cash receipts against other records each morning, tally totals by pencil, and throw the cash receipts away. Special Agent, Jim Lanza testified that of the Z tapes provided by Respondent, in response to the Agency demands, he organized into charts.5 The charts showed which Z tapes were missing, to wit: September 2, 1999, beginning with Z tape number 134 which was provided; the following sequentially number tapes were missing, 136, 137, 139, 140, 141. For October 1, 1999, beginning with Z tape number 228 which was provided, the following are examples of missing tapes, 229, 230, 232, 233. Mr. Lanza's charts, using the grand total of the beginning lower-numbered Z tape as the base, subtracted the beginning grand total from the next sequential grand total provided, with the resulting difference reflecting unreported sales. From this charting sequence, Mr. Lanza concluded that Respondent's unreported sales from missing Z tapes was $65,133.08 for the months of September 2, 1999, through October 31, 1999. Charles Dawson testified in agreement with the testimony of his bar manager, Mr. Allen, regarding the use of Z tapes, the training of new employees, and cash receipts having been placed in a water bucket on the bar and later being thrown away. Mr. Dawson's additional reasons for the missing Z tapes, while questionable, demonstrated a persistent and recurring pattern of a lack of diligence or a practiced disregard for consequences. According to Mr. Dawson, he read and signed the SRX license affidavit, but now claims he did not understand, nor did anyone explain to him what "specific type of records" he was required to keep.6 As to cash bar sales receipts, Mr. Dawson testified that they were added together with other sales, stapled to the guest checks for a running total, compared with the Z tapes totals and cash in register totals, and then thrown away. Regarding the missing Z tapes, Mr. Dawson testified that one of his registers had broken down, and was repaired and when back in operation, the Z tape numbering system was sequentially misaligned and returned to zero; thus, the missing Z tapes. On another occasion, lighting struck a register causing it to jam and render two or more Z tapes unreadable; they were thrown away. During the few days the registers were down, either he or Mr. Allen would go to each register drawer, at the end of the business evening, take the cash totals, and give that information to Mr. David Cary, bookkeeper. Charles Dawson, owner, knew of the mandatory requirement to maintain records of all gross sales of food and non-alcoholic beverages, separate records of all gross purchases of alcoholic purchases, and separate records of all gross retail sales of alcoholic beverages. Charles Dawson, by his actual participation in the wrongful destruction of records, permitted, approved, and condoned the continuous destruction by Ray Allen of cash sale receipts of alcoholic beverages and the destruction of register Z tapes resulting from the sale of food and alcoholic beverages by C. J. Oscars.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and a review of the penalty guidelines in Rule 61A-2.022, Florida Administrative Code, it is recommended that the Department of Business and Professional Regulation enter a final order revoking Respondent's Alcohol Beverage License SRX4COP Number 46-04601. DONE AND ENTERED this 13th day of April 2001, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 13th day of April, 2001.
The Issue The issue for consideration in this case is whether Respondent’s alcoholic beverage license for the premises located at 11441 Osceola Drive in New Port Richey, Florida, should be disciplined because of the matters alleged in the Administrative Action filed in this matter.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Division of Alcoholic Beverages and Tobacco, was the state agency charged with the responsibility to license and regulate the sales of alcoholic beverages and tobacco products in Florida. Respondent, D & S Cleaning Services, Inc., operated the Golden Acres Market #2 at 11441 Osceola Drive in New Port Richey, Florida, under 2-APS license number 61-00306. Pursuant to a request from the Food and Drug Administration, Special Agent Freese set up a random compliance check of the Respondent’s facility for sales of tobacco products to minors. This is routinely done as the result of an ongoing practice whereby FDA requests the Division to check specific business establishments. On the day in question, of the list of places to be checked, the majority were in Pasco County. On Saturday, October 11, 1997, working with an investigative aide, Mr. Teller, who was fifteen years old at the time, Special Agent Freese conducted a controlled buy at the Respondent’s facility. Freese briefed Teller before sending him into Respondent’s store, and also searched him to ensure he had no cigarettes, false identification, or other contraband on him. Freese then instructed Teller to go into the store and attempt to buy a package of cigarettes from whomever was on duty inside. Teller was to make no gratuitous representations about his age, and if asked for identification, was to be truthful. At approximately 3:00 p.m. on the day in question, Teller entered Respondent’s store, with Freese following shortly thereafter. According to Freese, the store is a typical convenience store. No customers were inside at the time. From fifteen to twenty feet away, Freese observed Teller approach Ms. Sargeant, who was manning the register, and ask for a package of Marlboro Light cigarettes. Freese neither saw nor heard Ms. Sargent ask Teller for proof of age, or for identification. She sold him the cigarettes for $1.71, including sales tax. Teller, who is not a regular patron of the Respondent’s facility, contends that Ms. Sargeant neither asked him his age nor sought any identification. He was dressed in clothing consistent with that of a teenager, without a hat, at the time of the purchase. When Teller left the licensed premises, he gave the cigarettes he had purchased to Freese who marked them for evidence on the spot. Thereafter, Freese went back to the Respondent’s facility the following Monday and advised Ms. Sargeant of the unauthorized purchase. She had no recollection of it. Freese waited until the following Monday to notify the licensee of the alleged violation because of a Division policy which required investigators to ensure that investigative aides are removed from the scene of a violation prior to any arrest or in-person notice of a violation is made. By the time the agency participants got home on Saturday, it was late. The following day was Sunday, in the absence of an emergency situation a non-work day, so the actual notice of violation was not given until the following Monday. Both Ms. Sargeant and Mr. Szymczak contend that by the time they were questioned on Monday, neither could remember a particular patron who purchased a pack of cigarettes. Some time later, on November 10, 1997, an Administrative Action was issued, indicating the Division’s intention to take disciplinary action against the licensee because of the unlawful sale of tobacco products to a minor. According to both Sargeant and Szymscak, there is no way Teller or anyone else could have purchased a pack of Marlboro Lights at their store for $1.71, including tax. At the time in issue, Marlboro was having a large promotion and had supplied them with several signs, for both outside and inside the store, which listed Marlboro Lights for sale at $1.88 per pack, plus tax, for a total of $2.00 per pack. The pricing structure for other cigarettes at the time, they claim, priced generic cigarettes at $1.69 per pack, plus tax, for a total of $1.80 per pack, and, at times, other less known brands on sale for $1.49 per pack plus tax. None, they claim, sell or were sold for $1.71 per pack, either with or without tax. Mr. Szymscak, who claims he is always in the store, also denies having seen either Freese or Teller in the licensed premises until Freese came in on the evening of Monday, October 13, 1997. When the Administrative Action was initially served on the Respondent, it did not contest that the sale had been made. Mr. Szymscak and Ms. Sargent avowed no knowledge of it, however. They were initially contesting the amount of the proposed fine as excessive. However, having heard both Freese and Teller testify at hearing as to the $1.71 price of the cigarettes, they now state they are convinced the purchase was not made at their establishment. The more credible weight of the evidence establishes that the alleged sale was made at Respondent's store.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Alcoholic Beverages and Tobacco enter a Final Order in this case imposing the minimum appropriate penalty for the offense of unlawfully selling one pack of cigarettes to a minor under the age of 18. DONE AND ENTERED this 18th day of April, 1998, in Tallahassee, Leon County, Florida. _ ARNOLD H. POLLOCK 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1998. COPIES FURNISHED: George G. Lewis, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Deborah Sargeant, President Stanley Szymczak, Secretary-Treasurer D & S Cleaning Services, Inc. Post Office Box 1723 New Port Richey, Florida 34656 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
Findings Of Fact Respondent, Angel Portillo d/b/a Zippo's, is an alcoholic beverage licensee holding beverage license no. 39-518, Series 2-COP, issued by Petitioner. Zippo's is located at 1220 West Platt Street, Tampa, Hillsborough County, Florida. At all times pertinent to this cause Margaret Frey was employed as a barmaid at Zippo's. Billy M. Brown was at all time pertinent to this cause a special agent for the United States Department of Agriculture. David Menendez was at all times pertinent to this cause an investigative aide for the United States Department of Agriculture. Also, at all times pertinent Menendez was under the supervision and direction of Brown. Between June 18 and July 10, 1980, Brown and Menendez conducted an undercover investigation at Zippo's concerning allegations of food stamp fraud or trafficking in food stamps. At all times pertinent to this cause, Zippo's was not authorized by the United States Department of Agriculture to receive or redeem food stamps issued by the United States Government. On June 18, 1980, Margaret Frey, while on duty at Zippo's, purchased one hundred fifteen (115) dollars worth of food stamps from Menendez for sixty five (65) dollars cash. On this occasion, Menendez was accompanied by Brown. On June 23, 1980, Frey, while on duty at Zippo's, purchased two hundred ten (210) dollars worth of food stamps from Menendez for one hundred (100) dollars cash. Menendez was again accompanied by Brown. On June 30, 1980, Frey, while on duty at Zippo's, purchased five hundred thirty (530) dollars worth of food stamps for two hundred (200) dollars cash from Brown. On July 7, 1980, Frey, while on duty at Zippo's, purchased five hundred twenty (520) dollars worth of food stamps for two hundred fifty (250) dollars from Brown. However, the transaction was executed at an apartment next door to Zippo's. On July 10, 1980, Frey, while on duty at Zippo's, purchased five hundred twenty five (525) dollars worth of food stamps for two hundred fifty (250) dollars cash from Brown. Portillo apparently had no actual knowledge of Frey's actions as he held a full-time job with a vending company during all times pertinent to this case. At all times pertinent to this cause, Respondent Portillo was absent from the licensed premises. Portillo's testimony established that he is only at Zippo's in the morning prior to opening, at shift change each afternoon (approximately 4:00 p.m.) and at closing time in the late evening or early morning. At all times pertinent to this cause, Margaret Frey was the only employee of Zippo's on the licensed premises. Frey initially testified that funds to purchase the food stamps ($865 total) were personal funds. She subsequently testified that her former husband provided some of the funds for these purchases and later testified that some of the funds for the purchase of food stamps came from a joint account she and her former husband had established at Freedom Federal in Tampa, Florida. Frey redeemed a portion of the food stamps purchased from Menendez and/or Brown at a grocery store nearby Zippo's, which grocery store was also owned by Respondent. This grocery store is and was at all times pertinent to this cause a retail store authorized to accept and redeem food stamps. Although Frey claimed that all purchases of food stamps made by her were conducted in a secretive fashion, Menendez's testimony established that on June 18, 1980, her purchase of one hundred fifteen (115) dollars worth of food stamps from him was conducted openly with said transaction made across the bar. As a result of the food stamp purchases discussed above, Frey was arrested and charged with violations of Federal Law by knowingly receiving food stamps in a manner not authorized by the Food Stamp Act of 1964, as amended. She was subsequently adjudicated guilty of these violations.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of the allegations contained in Counts 1, 2, 3 and 5 of the Administrative Complaint. It is further RECOMMENDED that Respondent's alcoholic beverage license no. 39-518 be suspended for a period of 14 days. DONE and ENTERED this 14th day of July, 1982 at Tallahassee, Florida. R. T. CARPENTER, 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 14th day of July, 1982. COPIES FURNISHED: John A. Boggs, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Robert A. Herce, Esquire HERCE & MARTINEZ Pan American Center Building A 4602 N. Armenia Avenue Tampa, Florida 33603 Gary A. Rutledge, Secretary Department of Business Regulation 725 Bronough Street Tallahassee, Florida 32301 Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether Respondents' alcoholic beverage license should be disciplined for the reasons stated in Petitioner's Notice to Show Cause dated September 14, 1982.
Findings Of Fact Based on the evidence presented, the following facts are determined: The Long Branch was operating under DABT License No. 74-878 in License Series 4-COP-SRX. This type of license requires food and nonalcoholic beverage sales to constitute at least 51 percent of all sales. Audit of the Long Branch's records, which were examined on a month-by- month breakdown of the sales for the period July 1 1981, to July 1, 1982, showed food and non- alcoholic beverage sales at 7.7 percent and alcoholic beverage sales at 92.3 percent of total sales. For the period July 1 through July 27, 1982, the ratio was 4.3 percent to 95.7 percent. At no time during the more than one year period audited did the food sales reach the required 51 percent.
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondents' License No. 74-878 be revoked. RECOMMENDED this 31st day of March, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 31st day of March, 1983. COPIES FURNISHED: Thomas M. and Sandra J. Spera Long Branch 600 South Yonge Street Ormond Beach, Florida Mr, Howard M. Rasmussen Director, Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr Gary R. Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue At issue in this proceeding is whether respondent committed the offenses set forth in the administrative action, as amended, and, if so, what disciplinary action should be imposed.
Findings Of Fact At all times material herein, respondent, Qasem Shahinda d/b/a Ismael and Son Supermarket, held alcoholic beverage license number 23-10720, series 2- APS, for the premises located at 14528 Lincoln Boulevard, Miami, Florida. At all times material hereto, respondent was authorized to receive U.S.D.A. food stamps in exchange for food items, and had received training prior to such authorization from the United States Department of Agriculture as to, inter alia, items of merchandise which could or could not be exchanged for food stamps. In December 1992, U.S.D.A. Investigator William Bethel (Bethel) and U.S.D.A. Investigative Aide Mary Pierce (Pierce) commenced an investigation of the licensed premises to ascertain whether nor not persons associated with the premises were complying with State and Federal law regarding the acceptance of U.S.D.A. food stamps. In each instance, Bethel accompanied Pierce to the premises and provided her with the U.S.D.A. food stamps used in the investigation. On December 10, 1992, Pierce entered the license premises with $30.00 in U.S.D.A. food stamps. At or about 1:20 p.m. that date, a female clerk on the premises accepted food stamps in exchange for merchandise which, in addition to eligible items, included the following ineligible items: a six-pack of Old Milwaukee Beer, one pack of Winston cigarettes, one pack of Newport cigarettes, and one Massengill disposable douche. On April 14, 1993, Pierce entered the licensed premises with $65.00 in U.S.D.A. food stamps. At or about 12:30 p.m., another female clerk accepted $32.79 worth of food stamps in exchange for merchandise which, in addition to eligible items, included the following ineligible items: a six-pack of Old Milwaukee Beer and one pack of Newport cigarettes. 1/ On April 14, 1993, Investigator Bethel entered the licensed premises with $45.00 in U.S.D.A. food stamps in furtherance of the above described investigation. At or about 12:35 p.m., the same female clerk accepted $38.97 worth of food stamps in exchange for merchandise which, in addition to eligible items, included the following ineligible items: a six-pack of Old Milwaukee Beer, one box of Cheer detergent, and one box of Clorox dry bleach. 2/ On April 28, 1993, Pierce entered the licensed premises with $55.00 in U.S.D.A. food stamps in furtherance of the above described investigation. At or about 11:40 a.m., the same female clerk she had encountered on April 14, 1993, accepted $53.85 worth of food stamps in exchange for merchandise which, in addition to eligible items, included the following ineligible items: a six-pack of Old Milwaukee Beer, one pack of Winston cigarettes, one pack of Newport cigarettes, one roll of Reynolds Foil, and one box of Hefty kitchen bags. 3/ Pierce returned to the premises on April 28, 1993, with $65.00 in U.S.D.A. food stamps. At or about 11:55 a.m., Pierce met with the same female clerk and sold her the $65.00 in U.S.D.A. food stamps for $25.00 in United States currency. 4/ On July 19, 1993, Pierce entered the licensed premises with $140 in U.S.D.A. food stamps in furtherance of the above described investigation. At or about 12:45 p.m., a male clerk accepted food stamps in exchange for merchandise which, in addition to eligible items, included an ineligible pack of Winston cigarettes. Moreover, the same male clerk purchased from Pierce $130.00 in U.S.D.A. food stamps (two full $65.00 books) for $70.00 in United States currency.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered finding respondent guilty of the aforesaid violations and assessing a $2,000.00 civil penalty. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 8th day of March 1995. WILLIAM J. KENDRICK 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 8th day of March 1995.
