The Issue The parties stipulated that the quality of the gasoline was not at issue and that the sole issue was the reasonableness of the amount of the bond. The amount of the bond is based upon the price of the mislabeled gasoline sold or estimated to have been sold, not to exceed $1,000.00. The factual issue became how much gasoline had been sold since the tanks were mislabeled by IGS.
Findings Of Fact On June 4, 1985, a regular sampling inspection was conducted by staff of the Department of Agriculture at the Lil General Food Store, 2099 S. Goldenrod Road, Orlando, Florida. This inspection revealed that the regular unleaded gasoline had a 10.3 percent alcohol content but was not properly labeled, as required by law, as containing alcohol. The inspector accepted a $1,000.00 bond in the absence of any evidence by the vendor that less than 1,000 gallons at a price of $1.00 per gallon of mislabeled gasoline had been sold. On June 5, 1985, a regular sampling inspection was conducted by staff of the Department of Agriculture at the Circle K Store, 29495 S.W. 152nd Avenue, Homestead, Florida. This inspection revealed that the regular unleaded gasoline had a 9.6 percent alcohol content but was not properly labeled, as required by law, as containing alcohol. The inspector accepted a $1,000.00 bond in the absence of any evidence by the vendor that less than 1,000 gallons at a price of $1.00 per gallon of mislabeled gasoline had been sold. IGS refurbishes gasoline pumps, painting and replacing the labels on the pumps. IGS was engaged in this activity for Circle K in May 1985 and during that month refurbished both of the pumps subsequently cited by the Department of Agriculture. The Respondent was given the opportunity to present evidence regarding the date the signs on the pumps were refurbished and the amount of gasoline pumped after that date. The Respondent was unable to present evidence on the amount of gasoline actually pumped. The pumps in question had been refurbished nearly a month before the inspections.
Recommendation The bonds of $1,000.00 in the two instances above were reasonable and justified, given the violations of Section 5F-2.03(7), Florida Administrative Code (1875 Supp.) and Section 525.06, Florida Statutes. DONE AND ORDERED this 10th day of December 1985 in Tallahassee, Florida. STEPHEN F. DEAN 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 10th day of December, 1985. COPIES FURNISHED: Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Robert Chastain, Esquire General Counsel Mayo Building - Room 513 Tallahassee, Florida 32301 Ron Weaver, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Patrick J. Donnelly, President IGS - Identification and Graphic Services Company, Inc. 3331 W. Main Tampa, Florida 33607
Findings Of Fact The following findings of fact are based upon the stipulation of the parties and the evidence presented: During a routine inspection on June 11, 1986 at Ron's Chevron #4, 1790 North Hercules, Clearwater, Florida, samples of all grades of gasoline were taken. A sample was taken from each side of a pump labeled "Chevron Unleaded". Using a field method for measuring lead content, it was determined that both samples contained more than 0.11 grams of lead per gallon, which exceeds the standard of 0.05 grams per gallon. The results of the field measurement were confirmed at the Department's main laboratory by Nancy Fischer on June 16, 1986. A stop sale notice was issued on June 12, 1986, and the contaminated product was withheld from sale to the public. On June 17, 1986, Petitioner was required to post a bond in the amount of $1,000 in lieu of the Department confiscating 5,850 gallons of fuel. The product was released for sale as Chevron Regular, a leaded fuel. New product was placed in the tank and proved lead free. Lead in gasoline is detrimental to a car designed to run on unleaded fuel. The lead can cause serious damage to the emission system and possibly the engine by stopping up the catalytic converter. The parties stipulated that the sole issue in this case is the amount of the bond. There is no evidence that Petitioner intentionally contaminated the fuel for financial gain. The cause appears to have been carelessness at some point between, or at, wholesale and retail. The Department accepted a bond of $1,000 and allowed Petitioner to retain the fuel for relabeling and sale as leaded fuel. The Department's penalty imposed in this case is consistent with its past practice in factually similar cases.
Recommendation Based upon the foregoing, it is recommended that the Department enter a Final Order requiring Petitioner to post a $1,000 refundable bond. DONE AND ENTERED this 23rd day of October 1986 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 23rd day of October 1986. COPIES FURNISHED: Ronald Trimm Ron's Chevron #4 1790 North Hercules Clearwater, Florida 33515 William C. Harris, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 The Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301
Findings Of Fact The Respondent, Sahara Corporation of Pensacola, admitted that on October 31, 1975, at the Sahara Club in Pensacola, Florida, one employee of the Sahara Corporation, Cynthia Ann Langford, did sell two alcoholic beverages to Connie Craig, a minor, under the age of 18. For a defense, the Sahara Corporation, stated that said minor had advised Cynthia Langford and other employees that she was over the age of 18; that the owner of the Sahara Corporation, Joseph Spadara, was not present during the sale, and that he took every reasonable precaution to prevent sales to minors. The evidence shows that Connie Delores Craig was under the age of 18 on October 31, 1975; that she was served alcoholic beverages on the licensed premises of the Sahara Club and that she consumed alcoholic beverages on the licensed premises.
Recommendation Under the circumstances as shown by the evidence and testimony at this hearing, Beverage License No. 27-27,4-COP issued to the Sahara Corporation of Pensacola, should not be suspended or revoked, but that a penalty should be assessed as a deterent to future violations of Section 562.11, F.S. Said penalty should be in an amount not in excess of $250.00. DONE and ORDERED this 7th day of May, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles F. Tunnicliff, Esquire Division of Beverage The Johns Building Tallahassee, Florida 32304 Leo A. Thomas, Esquire Seville Tower, 226 South Palafox Pensacola, Florida Charles Nuzum, Director Division of Beverage Department of Business Regulation The Johns Building Tallahassee, Florida 32304
The Issue This matter arises out of the denial or rejection of a filing by the Liberty Bank of Cantonment with the Division of Alcoholic Beverages and Tobacco for the purpose of perfecting a lien against a beverage license pursuant to Section 561.65, Florida Statutes. Mr. Charles L. Hoffman, attorney for Liberty Bank of Cantonment, testified on behalf of the Petitioner. The Petitioner offered two exhibits into evidence and both were accepted without objection. The Respondent presented no evidence on its behalf. Neither party filed proposed findings of fact and conclusions of law. However, the Petitioner filed a Memorandum of Law in support of its legal argument as to why it should be granted a lien against Beverage License No. 27- 426. To the extent that the legal conclusions presented in that memorandum of law and the facts stated are not adopted in this order, they are considered to be irrelevant to the issues in this cause or not supported by the facts or the law.
Findings Of Fact On July 10, 1981, The Rafters, Inc. executed a security agreement in favor of the Liberty Bank of Cantonment. That security agreement is a part of Petitioner's Exhibit 1 and included a security interest in State Liquor License No. 27-426 issued in the name of The Rafters, Inc. On July 24, 1981, the necessary U.C.C. documents were filed in order to permit the Liberty Bank of Cantonment to file the proper documents with the Secretary of State. No documents were filed with the Division of Alcoholic Beverages and Tobacco. On September 20, 1982, the Petitioner first filed the necessary documentation with the Division of Alcoholic Beverages and Tobacco for the purpose of perfecting a lien pursuant to Section 561.65, Florida Statutes. The Division of Alcoholic Beverages and Tobacco rejected the filing on the grounds that it was filed beyond the 90-day period provided in Section 561.65(4), Florida Statutes. On October 19, 1982, The Rafters, Inc. filed its answer to an amended complaint in foreclosure which had been filed by the Liberty Bank of Cantonment against the property set forth in the aforementioned security agreement. In its answer, The Rafters, Inc. admitted all allegations of the amended complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Division of Alcoholic Beverages and Tobacco enter a Final Order rejecting the application for a lien filed by the Petitioner to perfect a security interest in Beverage License No. 27-426. DONE and ORDERED this 20th day of April, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, 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 20th day of April, 1983. COPIES FURNISHED: Charles L. Hoffman, Jr., Esquire Seventh Floor, Seville Tower 226 South Palafox Street Post Office Box 1831 Pensacola, Florida 32598 Harold F.X. Purnell, Esquire William A. Hatch, Esquire General Counsel Department of Business Regulation Dept. of Business Regulation 725 South Bronough Street 725 South Bronough Street Tallahassee, Florida 32301 Tallahassee, Florida 32301 Howard M. Rasmussen, Director Gary Rutledge, Secretary Division of Alcoholic Beverages Dept. of Business Regulation and Tobacco The Johns Building 725 South Bronough Street 725 South Bronough Street Tallahassee, Florida 32301 Tallahassee, Florida 32301
The Issue This is an action filed by the Petitioner pursuant to Section 120.56, Florida Statutes, challenging the validity of the existing Rule 7A-4.13, Florida Administrative Code, by alleging that the Rule is an invalid exercise of delegated legislative authority.
Findings Of Fact On August 2, 1979, the Petitioner, Jax Liquors, Inc., filed its Petition pursuant to Section 120.56, Florida Statutes, challenging the validity of Rule 7A-4.13, Florida Administrative Code. This Rule is a rule promulgated by the State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, Respondent. Subsequent to the filing of the Petition, the Director of the Division of Administrative Hearings assigned the case to this Hearing Officer for consideration. On August 17, 1979, the Intervenor, Beer Industry of Florida, Inc., ("BIF") filed a Motion for Leave to Intervene and that intervention was allowed. On November 13, 1979, a formal hearing in this matter was conducted through the process of the introduction of a Prehearing Stipulation entered into between the parties, the introduction of supplemental evidence, and the presentation of oral argument designed to augment the legal Memoranda submitted by the parties. One of the aspects of the Prehearing Stipulation was the submittal of an agreed statement of admitted facts. These facts are in Section V. In accordance with the Stipulation, the facts are established as follows: Jax Liquors, Inc., has standing to attack the validity of Rule 7A- 4.13, Florida Administrative Code. State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco and Beer Industry of Florida, Inc., have standing to participate in this action and defend Rule 7A- 4.13. Exhibit A attached hereto is an accurate copy of Rule 7A-4.13, Florida Administrative Cede, which makes the wholesale price of malt beverages sold by any one distributor a matter of public record. Rule 7A-4.13, Florida Administrative Code (hereinafter "the Rule"), requires that a distributor of malt beverages file his selling price with the Division ten days in advance of the effective date of such price. In other words, if a distributor wishes to sell beer at a certain price, he must file that price in the central office of the Division of Alcoholic Beverages and Tobacco and also in the appropriate (his distribution area) district office, and then wait ten days before actually selling at that price. Wholesalers, including but not limited to the members of BIF, routinely change the price at which retail vendors may purchase beer for resale. These changes may occur on a daily basis and result from shifts in supply and demand for the product, special promotions by the manufacturer, volume purchases by vendors, and other circumstances occurring in the marketplace. The price posted by a distributor must be available to all retailers who wish to purchase similar quantities at the same time. The Rule does not require a retailer to sell at any particular price. The retailer is free to sell at any price he may set. Rule 7A-4.13 is used by the Division to monitor the price at which beer wholesalers sell to retailers. The posted price provides a record of wholesale prices. Therefore, the Division can compare a wholesaler's or retailer's invoices, checks, etc., to the posted price to determine if a violation of Rule 7A-4.13 has occurred. This system also gives retailers a way in which to discover if prohibited transactions have occurred. Subject to the time restriction set forth in Rule 7A-4.13, JAX is free to negotiate the price at which it may buy beer from the wholesaler, provided that the product must be made available by the wholesaler to all retail vendors buying similar quantities of the product at the same time. Intervenor's exhibits of rules and statutes are accurate exhibits of such rules and statutes which were validly enacted and uniformly enforced for the period during which same were in effect. During license year October 1, 1977, to September 30, 1978, the State of Florida had issued 6,710 retail liquor licenses and 27,918 retail beer licenses. During calendar year 1978, 25,267,559 gallons of liquor were sold in Florida. During fiscal year 1978-79, 19,349,229.78 gallons of wine were sold in Florida. During calendar year 1978, 225,855,202 gallons of beer (based on 2.25 gallons per case of 24-12 ounce and 15.5 gallons per 1/2 bbl.) were sold in Florida. In the Prehearing Stipulation there was another category of facts to which the parties stipulated as being uncontroverted, but relevancy was not admitted. Of the statement of facts, the following facts stipulated to are herein reported and made a part of the Findings of Fact section of this Order. They are: packaged. Beer generally begins to deteriorate 60 to 120 days after it is Beer that has reached its expiration date is removed from the shelves of the retailer by the wholesaler and is destroyed. In its original sealed container, wine has a shelf life of from 120 days to many years. In its original sealed container, liquor has a shelf life of many years. Wine and liquor are generally presold (i.e., contract between the wholesaler and retailer is entered in advance of delivery). Beer is sometimes presold, but usually is sold by a truck driver who makes sales from his vehicle at the time he calls upon a retailer. The parties by their Prehearing Stipulation further agree that there are no issues of fact which remain to be litigated and there are no issues of fact which remain for determination by the Hearing Officer. Therefore, the legal conclusions reached in this matter are premised upon a consideration of the fact stipulations reported above; the items of evidence presented as exhibits to the Prehearing Stipulation, as amended November 14, 1979, by correction to Exhibit J, and other exhibits presented in the course of the hearing, to include the Petitioner's Composite Exhibit No. 2 not presented as a part of the Prehearing Stipulation. The facts related in the Petitioner's Exhibit No. 1 and the Petitioner's Composite Exhibit No. 2 are made a part of the Findings of Fact section of this Order by incorporating the exhibits by reference and attaching copies to this Order.
The Issue The issue is whether Petitioner requested that Respondent record a lien against a certain liquor license within the time period allowed by statute.
Findings Of Fact Based on the evidence received at the final hearing, the following findings of fact are made. On December 7, 1988, Petitioner, The Button of Hallandale, Inc., requested that Respondent record a lien against spirituous alcoholic beverage license number 16-00318 so as to perfect Petitioner's security interest in the license. Respondent denied Petitioner's request on the basis that the request was not made within 90 days of the creation of the security interest as required by Section 561.65(4), Florida Statutes. Petitioner was the owner of license 16-00318 until July 15, 1987, the date Petitioner sold to 587 Enterprises, d/b/a Button South, (hereinafter called 587 Enterprises) license 16-00318, together with certain other assets. Prior to the sale, on May 13, 1987, Petitioner executed a promissory note in favor of Citizens and Southern National Bank of Fort Lauderdale (hereinafter called C&S Bank) together with a security agreement which included license 16-00318 as collateral. The note, in the principal amount of $56,000.00, was to be paid in 16 installments with the final payment in full falling due on August 17, 1988. C&S Bank's security interest in license 16- 00318 was perfected by the recording of a lien with Respondent as provided by Section 562.65(4), Florida Statutes. Prior to the closing, Petitioner told C&S Bank of its contemplated transaction with 587 Enterprises. Petitioner asked C&S Bank to release it from the promissory note dated May 13, 1987, and to allow 587 Enterprises to assume the note. C&S Bank refused this request and refused to release its lien against license 16-00318. To accommodate the position of C&S Bank, Petitioner and 587 Enterprises closed the transaction on July 15, 1987, with 587 Enterprises agreeing to accept license 16-00318 subject to the lien of C&S Bank and with Petitioner agreeing to pay the debt to C&S Bank according to the terms of the promissory note dated May 13, 1987. Petitioner and 587 Enterprises also made adjustments to the consideration 587 Enterprises was to pay to Petitioner for the assets being sold. At the closing of the transaction on July 15, 1987, 587 Enterprise executed and delivered to Petitioner a promissory note in favor of Petitioner in the principal amount of $219,000.00. This sum represented the deferred portion of the purchase price 587 Enterprises agreed to pay Petitioner for the assets being sold. The payment of the promissory note was secured by a Security Agreement executed by 587 Enterprises and delivered to Petitioner at the closing on July 15, 1987. Specifically included in the collateral listed in the Security Agreement was license 16-00318. On July 15, 1987, the value of License 16-00318 exceeded the amount of the C&S Bank lien. In August 1988 Petitioner made the final payment on the debt to C&S Bank. On October 11, 1988, the C&S Bank advised Respondent that the promissory note dated May 13, 1987, had been paid and requested that its lien against license 16-00318 be released. On December 7, 1988, Respondent received a request from Petitioner to have its lien recorded against license 16-00318. On the request form Petitioner asserted that the effective date of its lien or security interest was October 15, 1988. In response to Respondent's request for documentation of its lien, Petitioner forwarded to Respondent copies of the promissory note and security agreement executed by 587 Enterprises on July 15, 1987. After Respondent denied Petitioner's request to record its lien against license 16-00318, Petitioner filed a timely demand for a formal hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, issue a Final Order which denies Petitioner's request to have its lien or security interest recorded against spirituous alcoholic beverage license 16-00318. DONE AND ENTERED this 12th day of June, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 13th day of June, 1989. APPENDIX The findings of fact contained in paragraphs 1, 3, 4, 6, 7, 8, 9, 10, 11 of Respondent's proposed findings of fact are adopted in substance, insofar as material. The findings of fact contained in paragraphs 2, 5 and 12 of Petitioner's proposed findings of fact are immaterial. COPIES FURNISHED: NORMAN ELLIOTT KENT, ESQUIRE POST OFFICE BOX 14486 FORT LAUDERDALE, FLORIDA 33302-4486 JOHN B. FRETWELL, ESQUIRE ASSISTANT GENERAL COUNSEL DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH STREET TALLAHASSEE, FLORIDA 32399-1007 CAPT. RUSSELL R. SMITH DISTRICT SUPERVISOR 499 NORTHWEST 70TH AVENUE, SUITE 312 ATRIUM EXECUTIVE PLAZA PLANTATION, FLORIDA 33317 STEPHEN R. MACNAMARA, SECRETARY DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH STREET TALLAHASSEE, FLORIDA 32399-1007 JOSEPH A. SOLE, GENERAL COUNSEL DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH STREET TALLAHASSEE, FLORIDA 32399-1007 LEONARD IVEY, DIRECTOR DEPARTMENT OF BUSINESS REGULATION DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO THE JOHNS BUILDING 725 SOUTH BRONOUGH STREET TALLAHASSEE, FLORIDA 32399-1000 VAN B. POOLE, SECRETARY DEPARTMENT OF BUSINESS REGULATION THE JOHNS BUILDING 725 SOUTH BRONOUGH STREET TALLAHASSEE, FLORIDA 32399-1000
Findings Of Fact On July 6, 1977, petitioner caused respondent to be listed, for alleged noncompliance with Section 561.42(3), Florida Statutes (1977), in a notice to distributors of alcoholic beverages, according to which respondent was "prohibited from purchasing . . . any alcoholic beverages except for cash until further notice." Petitioner's exhibit No. 9. On July 29, 1977, Anthony J. Foglietta purchased ten cases of beer for respondent from Universal Brands, Inc., for which he wrote a check in the amount of sixty-four and one half dollars ($64.50). Petitioner's exhibit No. 2. In a separate transaction on the same day, Mr. Foglietta purchased three cases of beer for respondent from Universal Brands, Inc., for which he wrote a check in the amount of nineteen dollars and thirty-five cents ($19.35). Petitioner's exhibit No. 4. For the same amount, on August 9, 1977, Mr. Foglietta purchased three cases of beer for respondent from Universal Brands, Inc., which he paid for by check. Petitioner's exhibit No. 6. Two days later Mr. Foglietta bought three more cases of beer for respondent, which he paid for in cash. On the night of August 5, 1977, Mr. Foglietta purchased 18 to 20 bottles of liquor for respondent from The Beacon Bar, paying with a check in the amount of two hundred forty dollars and seventeen cents ($240.17). Petitioner's exhibit No. 10. On the same date, Mr. Foglietta purchased other liquor for respondent from Three Spirits, Inc., which he paid for with a check in the amount of one hundred seventy-nine dollars and twenty-six cents ($179.26). Petitioner's exhibit No. 11. Four days later Mr. Foglietta, bought for respondent additional alcoholic beverages from Three Spirits, Inc., which he paid for with a check in the amount of sixty-one dollars ($61.00), Petitioner's exhibit No. 12. On August 30, 1977, respondent's bar was well stocked with alcoholic beverages, although the notice issued on July 6, 1977, had not been rescinded. On July 14, 1977, Mr. Foglietta and Mr. Joseph P. Sgroi signed a corporate resolution, which was stamped with the seal of The Hospital Disco, Inc., and left with Landmark First National Bank; the resolution recites that Messrs. Foglietta and Sgroi were operating vice-president and president, respectively, of The Hospital Disco, Inc. Petitioner's exhibit No. 14. Messrs. Foglietta and Sgroi also signed a second corporate resolution to like effect. Petitioner's exhibit No. 13. Petitioner's records indicate that James C. Lorigo owned all of respondent's stock and was respondent's president, vice-president and secretary at the time of the hearing. Petitioner's records did not reflect the filing of any application for a license transfer, at the time of the hearing.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner assess a civil penalty of one hundred dollars ($100.00) against respondent. That petitioner revoke respondent's license on the thirtieth day after entry of this order unless respondent shall by then have complied with Rules 7A- 2.07 and 7A-3.37, Florida Administrative Code, and unless by then Mr. Foglietta and any other person associated with respondent who is required by law to do so shall comply with Section 561.17, Florida Statutes (1977). DONE and ENTERED this 28th day of June, 1978, 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: Dennis E. LaRosa, Esquire The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 The Hospital Disco, Inc. t/a Carmen's Restaurant and Disco 928 N. Federal Highway Ft. Lauderdale, Florida F. Ronald Mastriana, Esquire 2750 North Federal Highway Ft. Lauderdale, Florida 33306
