Findings Of Fact At all times pertinent to these proceedings, Respondent, Daughtin J. Rhue, operated a business, J's Cut Rate Variety Center, in Fort Lauderdale, Florida, under a Series 2-APS beverage license, No. 16-731, issued by Petitioner. On May 26, 1983, Beverage Officer D'Ambrosia entered Respondent's place of business on a matter unrelated to the offenses charged here (nonpayment of Florida sales tax). While there, he noticed several packs of cigarettes on the shelf behind the counter which appeared to be nontaxed cigarettes. These cigarettes, which he knew to be untaxed because of the red meter stamp imprinted on the bottom of the packs (tax-paid cigarettes have a black metered stamp on the bottom of the pack), were mixed in with the tax-paid cigarettes offered for sale by Respondent. Mr. D'Ambrosia said nothing about this to Respondent at that time, but then conducted a search elsewhere in the store for other nontaxed cigarettes and could find none. When he came back to the counter again, he found that those packs which bore the red, nontaxed stamp had been reversed on the shelf so that the stamps were not facing outward as they had been previously. Along with Respondent, he examined all the cigarettes on the shelves and found 12 packs that bore the red, nontaxed stamp. There were 7 packs of Lark Lights 100s, 3 packs of Kool Super Lights, 1 pack of Benson & Hedges Menthol and 1 pack of Marlboro. The stamp these packs bore is issued only to the Indians, and cigarettes so marked and stamped are not for resale to non-Indian consumers. No other nontaxed cigarettes were found at that time either on the shelves or elsewhere in the store. However, review of the file on Respondent's license indicates that in April, 1979, Respondent was previously found to have 254 packs of untaxed cigarettes in his store for resale. Action was taken at that time pursuant to stipulation between the parties. Respondent admits the nontaxed cigarettes were on his shelves on May 26, 1983, but denies having known it prior to it being pointed out to him by the beverage agent. He contends that he orders all cigarettes for the store from only two vendors, Pueblo and Wholesale Plus, Inc., and that his employee picks them up from the wholesaler and stocks the shelves. Further, he denies purchasing or stocking the brands untaxed on his shelves. He also denies that the untaxed packs were touched during the visit by Mr. D'Ambrosia, indicating that they were not turned around as alleged. Notwithstanding Respondent's protestations, the untaxed cigarettes were, by his own admission, offered for sale on his shelves The dispute as to whether he knew the untaxed cigarettes were there is resolved against him. He states he worked there every day. It is unlikely he was not aware of their presence.
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondent's alcoholic beverage license, Series 2-APS, No. 16-731, be suspended for thirty (30) days and that Respondent pay an administrative fine of $500. RECOMMENDED this 8th day of November, 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 8th day of November, 1983. COPIES FURNISHED: John A. Boggs, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Daughtin J. Rhue 1415 N.W. Fifth Street Fort Lauderdale, Florida Mr. Gary Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen Director, Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether or not on or about October 28, 1976, investigation revealed that the Zig Zag Bar, Inc., d/b/a Zig Zag Pub, failed to notify in writing, the Division of Beverages, of its change of name, 30 days in advance of such change, contrary to s. 561.33, F.S. Whether or not on or about November 4, 1976, investigation revealed that the Zig Zag Bar, Inc., d/b/a Zig Zag Pub, did fail to submit and certified copy of the minutes of the stockholders' meeting, changing corporate officers, to the Division of Beverages, in violation of Rule 7A-2.07, F.A.C. Whether or not on or about November 12, 1976, investigation revealed that the Zig Zag Bar, Inc., d/b/a Zig Zag Pub, had entered into an agreement with one Billy Gene McKinney, which agreement relinquished all or part of the management and control of the licensed premises contrary to Rule 7A-3.17, F.A.C.
Findings Of Fact The Zig Zag Bar, Inc. is the holder of license number 23-2702, series 2-COP, held with the State of Florida, Division of Alcoholic Beverages and Tobacco. This license is held to do business under the name Zig Zag Pub, located at 800 Alibaba Avenue, Opa-Locka, Florida. This case arises on the basis of an investigation conducted by Agent James P. Bates, State of Florida, Division of Alcoholic Beverages and Tobacco. On October 19, 1976 Agent Bates received information from an unidentified confidential informant that the Zig Zag Pub had been sold or leased to one Billy McKinney, a convicted felon. Having received that information, Bates took action to determine whether the Respondent, Zig Zag Bar, Inc. had entered into an agreement with Billy McKinney, which agreement possibly would have relinquished all or part of the management and control of the licensed premises contrary to Rule 7A-3.17, F.A.C. One aspect of the investigation, was the review of the records maintained by the Division of Alcoholic Beverages and Tobacco to determine if Bill McKinney was listed as one of the officers of the subject corporation. This record examination took place in October or November, 1976. This search did not show Bill McKinney being listed as a corporate officer. The corporate officers listed were Phyllis Charlene Henry, President, Sigride Kienle Sowell, also known as Sigride Kienle, Vice-President and Richard M. Knowles, Secretary- Treasurer. Agent Bates went to thee location of the Zig Zag Pub, at 800 Alibaba Avenue, Opa-Locka, Florida, on October 28, 1976. When he arrived he discovered an advertising sign in the front of the licensed premises reflecting the name "Bill's Place". On October 28, 1976 the records of the Petitioner indicated the official name of the licensed premises was Zig Zag Pub. This prompted Agent Bates to make a further inquiry into the true status of the licensed premises, on the subject of ownership and control. Agent Bates checked with the City of Opa-Locka, Florida and discovered that Bill McKinney had completed a questionnaire for an operating license to be held with the City of Opa-Locka, Florida. The license was issued to Zig Zag Pub in the name of Richard M. Knowles; however, the questionnaire application was completed by Bill McKinney who indicated that he was the owner-operator. This information is shown in Petitioner's Exhibits number 1 & number 2 admitted into evidence. Petitioner's Exhibit 1 is the questionnaire and Petitioner's Exhibit number 2 is the city license. Agent Bates also ascertained that Bill McKinney had obtained a water permit from the City of Opa-Locka for the benefit of the licensed premises. In the course of his investigation, Bates talked to Phyllis Charlene Henry, the named President of the Zig Zag Pub, Inc. Ms. Henry stated that the Zig Zag Pub, Inc. still maintained control of the licensed premises, even though the operating manager and Vice-President Sigride Kienle Sowell had left, leaving McKinney as the manager. Bates went to the licensed premises on November 12, 1976 and found Bill McKinney working behind the bar. McKinney explained that he was the manager of the licensed premises. In checking the business records of the licensed premises, a lease agreement was discovered which was signed between McKinney and Richard M. Knowles as an officer with the Zig Zag Pub, Inc. This lease agreement was a two year agreement with an option for McKinney to become a full partner in the corporation known as Zig Zag Pub, Inc. The agreement also authorized Bill McKinney to take full control to operate the business under the present licenses, one of those licenses being the license being held with the State of Florida, Division of Alcoholic Beverages and Tobacco. Petitioner's Exhibit number 3, admitted into evidence is the business contract spoken of. Agent Bates also discovered a number of checks written on an account of Bill McKinney which pertained to expenses of the Zig Zag Pub, Inc. Some of these checks are found in Petitioner's Composite Exhibits number 4 & number 5. Petitioner's Exhibit number 6 is a ledger showing expenditures of the business and reflects entries which correspond to the checks found in Petitioner's Composite Exhibit number 4. Petitioner's Exhibit number 7, admitted into evidence, is a composite exhibit containing invoices that are reflected in the ledger and shows that the invoices were made out to Bill's Place, and paid by the Zig Zag Pub or Bill McKinney. Petitioner's Exhibit number 8, admitted into evidence, is a receipt for a water bill charged to the licensed premises and paid by Bill McKinney. In following up the explanation of the sign found on the outside of the licensed premises, showing the name to be "Bill's Place," an invoice was located in the records. This invoice is Petitioner's Exhibit number 9, admitted into evidence, and shows that the sign had been delivered August 21, 1976. Another exhibit showing the connection of Bill Kinney to the licensed premises is a health inspection form made in the name of "Bill's Place" for the licensed premises and acknowledged by Bill McKinney. This is reflected in Petitioner's Exhibit number 10, admitted into evidence. Finally, there is a letter from the law firm of Bergstresser and DuVal, which indicates a request for payment of the November, 1976 rent due from the licensed premises under terms of a lease entered into by the principles of Zig Zag Bar, Inc. This letter is addressed to Bill McKinney, and is Petitioner's Exhibit number 11, admitted into evidence. While in the licensed premises on November 12, 1976, Agent Bates discussed McKinney's position with the Zig Zag Bar, Inc. McKinney indicated that he had been the manager since June, 1976. In an effort to determine McKinney's position in the corporation of Zig Zag Bar, Inc., Bates inquired of the Secretary of State, State of Florida. A teletype message was forward to Agent Bates indicating that the corporation had been cancelled for nonpayment of corporate fees. However, this message indicated that the last named officers were shown as Phyllis Charlene Henry, President, Sigride Kinele, Vice President and Richard M. Knowles as Secretary-Treasurer. This is reflected in Petitioner's Exhibit number 13, admitted into evidence. On November 19, 1976, the corporation was reinstated upon the payment of its fees. At the time the corporation was reinstated it listed Phyllis C. Henry, President, Kathlene McKinney as Vice-President and Richard M. Knowles as Secretary-Teasurer. Kathlene McKinney is the wife of Bill McKinney. Petitioner's Exhibit number 14, admitted into evidence are the documents showing the reinstatement of corporation and indicates the named officers. The Petitioner had not been made aware of the change of officers, nor received a certified copy of the stockholders' meeting held by the Zig Zag Bar, Inc., which changed the corporate officers. After discovering the change in the corporate officers, Agent Bates met with Richard Knowles and Knowles stated that Sigride Kienle Sowell had been removed as manager and McKinney had been brought in to salvage the Zig Zag Bar, Inc., from its financial difficulties in the licensed premises. Knowles was instructed that he could take action to rectify the problem that he was having and gain compliance with the laws and rules of the State of Florida, Division of Alcoholic Beverages and Tobacco. At the date of hearing, Bill McKinney was still acting as the operator of the licensed premises, and the Zig Zag Bar, Inc., had not filed a certified copy of the minutes of the stockholders' meeting changing the corporate officers, to those reflected in the November 19, 1976 reinstatement of the corporation with the Secretary of State of Florida. Furthermore, the name displayed on the sign in front of the licensed premises was "Bill's Place," and not Zig Zag Bar. After concluding his investigation, Agent Bates related his findings to his superiors and this led to the filing of the notice to show cause which is the subject of this hearing. The notice to show cause contains three counts. The first of those counts alleges that on October 28, 1976, it was shown that the Zig Zag Bar, Inc., d/b/a Zig Zag Pub had failed to notify in writing, the State of Florida, Division of Alcoholic Beverages and Tobacco of its change of name in 30 days in advance of such name change, contrary to s. 561.33, F.S. Specifically, s. 561.33(2) , F.S. states: "no licensee may change the name of his place of business without first giving the Division 30 days' notice in writing of such change." In fact, the name was effectively changed from Zig Zag Pub to "Bill's Place" as discovered on October 28, 1976 and the Petitioner had not been notified 30 days in advance of such change. The Petitioner still has not been notified of such change. The second count of the notice to show cayuse alleges that on or about November 4, 1976 it was discovered that Zig Zag Bar, Inc. d/b/a Zig Zag Pub failed to submit a certified copy of the minutes of the stockholders' meeting changing corporate officers, to the State of Florida, Division of Alcoholic Beverages and Tobacco in violation of Rule 7A-2.07, F.A.C. The pertinent provision of the Rule, is Rule 7A-2.07(2), F.A.C., which states the following: "If any corporation holding a beverage license shall change corporate officers, such corporation shall within 10 days of such change submit a certified copy of the minutes of the stockholders' meeting at which the change in officers was effected to the district office of the district of the Division of Beverage wherein the license held by such corporation is located." The Respondent had changed the Vice-President in its corporation from Sigride Kienle Sowell to Kathlene McKinney, sometime prior to November 19, 1976, as evidenced by their filing with the Secretary of State of Florida. After making this change they failed to submit a certified copy of the minutes of the stockholders' meeting changing the corporate officer to the State of Florida, Division of Alcoholic Beverages and Tobacco within the allotted 10 day requirement. This change still has not been submitted. The third count in the notice to show cause was an allegation that the investigation on November 12, 1976, revealed that the Zig Zag Bar, Inc., d/b/a Zig Zag Pub, entered into an agreement with Billy Gene McKinney which agreement relinquished all or part of the management and control of the licensed premises and alleged that this was contrary to Rule 7A-3.17, F.A.C. Rule 7A-3.17, F.A.C. contains this language: "All business conducted on the licensed premises under the beverage law shall be managed and controlled at all times by the licensee managed by or his authorized employee or employees. The term "employee," as used herein, shall mean a person who received a salary or wages for services performed, for and in behalf of a licensee, under the exclusive control and direction of the latter. It does not include a lessee, and independent contractor or any person employed by collateral agreement to independently manage and control the said business on the licensed premises. Indicia for determining whether a purported managerial contract conforms to this rule are as follows: The licensee must retain control of the operation of the business. Salary or wages must be paid by the licensee to the manager or employee for conduct of the business under the ultimate direction of the former. Social Security and workmen's compensation coverage must be paid and accounted for by the licensee. The licensee must be responsible for all debts of the business and legally entitled to all incomes therefrom. All alcoholic beverages for the business must be purchased in the licensee's behalf and under the license covering the premises. The licensed premises must be operated for all purposes in the name of the licensee or his legal trade name as distinguished from the name or names of any other person or persons. The licensee must be responsible for all conduct of the business and the license involved must be subject to suspension and revocation for any illegal acts committed on the premises or under the beverage law. Complete ultimate authority for the hiring and dismissal of all employees on the premises must rest with the licensee. The licensee must be primarily responsible for the rent, utilities and insurance covering the premises, and all other incidental expenses occasioned in the operation of the business. The licensee must remain at all times responsible for the maintenance and proper operation of equipment on the premises. The contract must contemplate the formation of the relationship of principal and agent between the licensee and the employee within the limits defined and implied by the contract. A contract wherein the so-called employee or manager pays a fixed sum to the licensee whether from net profits or not would not create the employer/employee relationship as contemplated by the rule. Any agreement woven in such language so as to clothe or disguise the true character of a contract either as a lease or a managerial contract will be shorn in order to effect the intent and purpose of the law and rule in this regard. The Pole Star which will guide the Division in determining whether or not a purported agreement is a bona fide managerial contract as distinguished from a lease will depend upon who has ultimate overall control and direction of the licensed premises under the terms of the agreement." In reflecting on the requirements contained in the Rule and comparing it to the facts shown in this case, it is clear that the Respondent has failed to comply with Rule 7A-3.17, F.A.C.
Recommendation It is recommended that the Director of the Division of Alcoholic Beverages and Tobacco suspend license number 23-2702, for a period of 20 days, but that such suspension be withheld for 15 days from the date of the recommended order to: (1) allow Bill McKinney to try to transfer the license number 23-2702 into his name and control; or allow the Respondent to make him an officer, stockholder, or employee entitled to operate the licensed premises; or allow the Respondent to remove him as the manager and operator of the licensed premises; allow application for change of name from Zig Zag Pub to "Bill's Place" or remove a sign indicating that the licensed premises is called "Bill's Place" and to allow the Zig Zag Bar, Inc., to file a certified copy of the corporate minutes of the stockholders' meeting which changed its corporate officers to the present named corporate officers. After the 15 days if the items (1) through (3) haven't been complied with the suspension shall take effect. This recommendation does not consider the acceptability of Bill McKinney as a transferee of the license held with the Division of Alcoholic Beverages and Tobacco or the propriety of the name change; nor does it address the question of possible future violations. DONE AND ENTERED this 29th day of August, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Denise LaRosa, Esquire 725 South Bronough Street Tallahassee, Florida 32304 Richard M. Knowles Secretary- Treasurer Zig Zag Pub 800 Alibaba Avenue Opa-Locka, Florida
The Issue Whether respondent's law enforcement officer certificate should be revoked or suspended for alleged failure to maintain qualifications for certification, failure to maintain good moral character, and willful neglect of duty, incompetence, or gross misconduct which seriously reduces his effectiveness as a law enforcement officer.
Findings Of Fact At all times relevant to the charges, respondent held a law enforcement certificate issued by the Commission, and was employed as a Deputy Sheriff by the Polk County Sheriff's Department. In December, 1979, Respondent -- while employed as a Deputy Sheriff -- purchased a $5.00 bag of marijuana from an individual identified as "Baldy." The purchase took place in the presence of others and occurred at Baldy's apartment located at 904 Center Avenue, Haines City, Florida. Respondent did not arrest Baldy for possession and sale of marijuana. Moreover, on at least one occasion during the same year, respondent smoked marijuana at Baldy's apartment in the presence of others. This finding is based on respondent's admissions to R. L. Stanley and Jerry Whitehead. Those admissions are corroborated by the hearsay statement made by John Butler, Jr. to investigator Robert Parnell, and by the results of a polygraph examination which respondent took on February 9, 1981. The examination was administered by an expert polygraph examiner. Moreover, respondent did not object to receiving the examination results into evidence. At hearing, respondent admitted using marijuana, but denied having purchased marijuana at Baldy's apartment in December, 1979. His denial is rejected as unworthy of belief. (Testimony of Stanley, Whitehead, respondent; P-1, P-2, P- 3) On February 9, 1981, respondent was involuntarily terminated as a Deputy Sheriff with the Polk County Sheriff's Department for conduct unbecoming an employee, i.e., the purchase and use of marijuana.
Recommendation Based on the foregoing it is RECOMMENDED: That respondent's law enforcement officer's certificate be suspended for one year, with reinstatement upon a showing of rehabilitation. DONE and RECOMMENDED this 30th day of March, 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 30th day of March, 1983.
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 Whether, pursuant to section 210.30, Florida Statutes (2016),2/ Petitioner, Jemco Enterprises, Inc., d/b/a Payless Tobacco Source (“Jemco”), owes a tax deficiency in the amount of $5,582.73 for the audit period from July 1, 2016, to October 31, 2016, plus $558.27 in penalties and $144.43 in interest, for a total amount due of $6,285.43.
Findings Of Fact Jemco is a Florida corporation that is a distributor of tobacco products in Florida, pursuant to Wholesale License No. WDE1614464. The Division is the state agency charged with administering and enforcing chapter 210, related to the taxation of tobacco products. It is undisputed that Jemco is a distributor of tobacco products in Florida, and that it engaged in the distribution of tobacco products during the period of July 1, 2016, through October 31, 2016. It also is undisputed that Jemco was engaged in the distribution of tobacco products, on which it paid an applicable excise tax and surcharge, before July 1, 2016. As discussed in greater detail below, pursuant to section 210.30, an excise tax is imposed on all tobacco products and on any person engaged in business as a distributor in Florida at the rate of 25 percent of the wholesale sales price of such tobacco products. This excise tax is due to be paid during the month in which the licensed distributor purchases the tobacco products and brings them in state for sale in Florida. Additionally, pursuant to section 210.276, a surcharge is imposed on all tobacco products and on any person engaged in business as a distributor in Florida at the rate of 60 percent of the wholesale sales price of such tobacco products. This surcharge is due to be paid during the month in which the licensed distributor purchases the tobacco products and brings them in state for sale in Florida. In 2016, the Florida Legislature amended the definition of “wholesale sales price” in chapter 210. This amendment, which went into effect on July 1, 2016, changed the assessment of the excise tax and surcharge on the distribution of tobacco products. At some point——and the evidence does not establish when——the Division posted notice of this statutory amendment to the definition of “wholesale sales price” on its website. However, it did not notify distributors, including Jemco, by regular or electronic mail. Consequently, Jemco was unaware of this change in the law. On or about February 16, 2017, Alicia Cortez, an auditor employed by the Division, conducted a tax audit on Jemco for the audit period between July 1, 2016, and October 31, 2016. In conducting the audit, Cortez reviewed copies of out-of-state supplier invoices for tobacco products sold by the out-of-state suppliers to Jemco. These documents showed the total amount of the sales of tobacco products by out-of-state suppliers to Jemco. She verified these purchases by reviewing Jemco's bank statements. Cortez also reviewed the In-State Tobacco Products Wholesale Dealer's Reports (“Monthly Report”) submitted by Jemco to the Division on a monthly basis. These Monthly Reports, which are submitted in electronic format, show the net taxable purchases, excise tax amount, surcharge amount, and total amount——which consists of the excise tax and surcharge——due for that particular month, as calculated by Jemco. The Monthly Reports also show the amount of excise tax and surcharge paid by Jemco for purchases of tobacco products from out-of-state suppliers for that month. Cortez compared the total amount of taxable purchases of tobacco products, as determined by a review of the out-of- state supplier invoices, with the taxable purchases and excise tax and surcharge paid by Jemco for the particular month, as reported in its Monthly Reports. Here, the audit showed that Jemco did pay some excise tax and surcharge for the period between July 1, 2016, and October 31, 2016, but that it also had a tax deficiency of $5,583.73 for failure to pay the full amount of the excise tax and surcharge due during the audit period. With the imposition of $144.43 in interest and a penalty of $558.27, Jemco was determined to owe a total of $6,285.43. At Jemco's request, an audit conference between the Division and Jemco was conducted on June 19, 2017. The conference did not result in any change to the total amount of excise tax, surcharge, penalty, and interest that Jemco was determined to owe. As more fully discussed below, pursuant to section 120.80(14), which governs taxpayer contest proceedings under chapter 210, the Division has the initial burden in this proceeding to demonstrate the factual and legal grounds for the tax assessment. Once the Division makes that showing, the entity contesting the assessment——here, Jemco——has the burden to show the assessment was incorrect. Jemco contends that it did not intentionally try to evade paying its taxes due for the audit period, and asserts two grounds for disputing the assessed amount of $6,285.43. First, Jemco contends that, in addition to the period between July 1, 2016, and October 31, 2016, the audit also covered the months of May and June 2016. However, all of the documentary evidence admitted into the record of this proceeding, including the supplier invoices, Monthly Records, audit report, and auditor's summary sheet clearly shows that the Division audited only the period consisting of July 1, 2016, through October 31, 2016. The evidence shows that the Division purposely chose to audit only this four-month period, rather than a typical six-month audit period, specifically because the amended definition of “wholesale sales price” went into effect on July 1, 2016, and the Division decided to “have a clean cut off” in conducting audits. The evidence clearly and uniformly refutes Jemco's argument that the audit actually covered a six-month period, from May 1, 2016, to October 31, 2016.3/ Jemco also asserts that it should not be held liable for the tax deficiency for the audit period because it was unaware of the amended definition of “wholesale sales price” that went into effect on July 1, 2016. It characterizes the Division's assessment of tax deficiency, penalties, and interest based on the 2016 amendment to that definition as a “got-you attack.” The undersigned finds the testimony of Solis and Hershewsky credible and sympathetic that Jemco never intended to avoid paying the excise taxes and surcharges that it owed under the law, and that Jemco only found out that it was not paying the correct amount of taxes and surcharge for the audit period when the audit commenced in early 2017. It is understandable that a small business like Jemco could be caught unaware of a change in the law——particularly when it was not directly notified by regular or electronic mail of the changed law. However, as a wholesale distributor licensee subject to chapter 210, Jemco is nonetheless presumed to be aware of, and required to follow, this statute in accurately paying its excise taxes and surcharges. To that point, Florida case law states that “[a]s to notice, publication in the Laws of Florida or the Florida Statutes gives all citizens constructive notice of the consequences of their actions.” L & L Docs, LLC v. Div. of Alcoholic Bevs. & Tobacco, 882 So. 2d 512, 515 (Fla. 4th DCA 2004)(quoting State v. Beasley, 580 So. 2d 139, 142 (Fla. 1991)). Thus, “ignorance of the law is no excuse.” Davis v. Strople, 158 Fla. 614, 29 So. 2d 364 (Fla. 1947). Here, after the Legislature amended the definition of “wholesale sales price” in 2016, this amended definition was published as part of chapter 2016-220, Laws of Florida, and also as subsection 210.25(14), in the 2016 version of Florida Statutes, which remains in effect to date.4/ Under Florida law, Jemco, as a regulated licensed wholesale distributor of tobacco products, is responsible for being aware of, and complying with, the applicable law——here, the amended definition of “wholesale sales price” that went into effect on July 1, 2016. Nevertheless, it is noted that had the Division directly——by electronic mail or regular mail——informed wholesale distributors of tobacco products of the changed definition of “wholesale sales price” after it was enacted by the Legislature during the 2016 Legislative Session and before it went into effect on July 1, 2016, Jemco——and, presumably other distributors of wholesale tobacco products, some of which are small businesses——would have been informed of the change, so may not have incurred a tax deficiency, with accompanying penalty and interest. This is mentioned for the Division's consideration in informing licensees of significant future changes in the law that could affect their liability for tax deficiencies, penalties, and interest. Based on the foregoing findings, it is determined that the Division met its burden, pursuant to section 120.80(14)(b), to establish the factual and legal grounds on which the assessment of $6,285.43 was made. It is further determined that Jemco did not meet its burden under section 120.80(14)(b) to show that the assessment was incorrect. The clear and convincing evidence supports the Division's imposition of the proposed penalty and interest.
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, issue a final order imposing an excise tax and surcharge assessment of $6,285.43 on Jemco. DONE AND ENTERED this 14th day of February, 2019, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 2019.
The Issue At issue is the appropriate penalty to be imposed for respondent's violation of the provisions of Section 893.13, Florida Statutes.
Findings Of Fact The offense At all times pertinent hereto, respondent, Jabal, Inc. d/b/a Gus Food Store, held alcoholic beverage license number 23-1219, series 2-APS, for the premises located at 1490 N.W. 71st Street, Miami, Florida. Ghazi Farraj is the president and owner of respondent. On or about December 3, 1993, respondent, through its president and owner Ghazi Farraj, did unlawfully possess marijuana, specifically two marijuana cigarettes in a cigarette pack on his person while on the licensed premises. Mitigation Respondent submits the following information to be considered as "mitigating factors" in assessing the appropriate penalty to be imposed for its violation of the beverage laws: The Defendant Ghazi Farraj, entered a No Contest Plea on March 28th, 1994 before the Honorable Judge Leesfield to the charge of the possession of marijuana; to wit two marijuana cigarettes's [sic] and was found Quilty [sic] of said charge. The Respondent Ghazi Farraj, is a married man who has six children ranging in years as follows: eight thru nineteen who are living with the Respondent Ghazi Farraj, here in Miami, Dade County, Florida and he's the sole provider of his children and his wife. The Respondent Ghazi Farraj, here in [sic] has no prior Criminal Record prior to the incident described in Paragraph A. The Respondent Ghazi Farraj, fully recognizes the errors of his ways as stated in Paragraph A and he no longer will participate or get involved in any Criminal Act or Violation of the Department of Business and Professional Regulation, Division of Alcoholic Beverages And Tobacco Rules. The Respondent Ghazi Farraj, is a United States Citizen in good standing and if this Board suspends his beverage license it would not only put him out of business but will deprive the Respondent Ghazi Farraj, to fully support his family that was stated in Paragraph A.
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 Count 4 as charged, and suspending respondent's license for a period of sixty (60) days. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of January 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 18th day of January 1995. COPIES FURNISHED: Thomas A. Klein, Esquire Department of Business and Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Mr. Ghazi Farraj 1490 NW 71st Street Miami, Florida 33127 Mr. Ghazi Farraj 1490 NW 71st Street Miami, Florida 33147 Mr. Paul Pollack, Esquire 1704 Northwest 7th Street Miami, Florida 33125 John J. Harris, Acting Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Business and Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether Petitioner, a licensed distributor of tobacco products, was required to pay an excise tax and surcharge, which the state levies on specified tobacco products, when it regularly brought into Florida shipments of a tobacco-containing product marketed as a cigar wrapper and known as a "blunt wrap."
Findings Of Fact At all relevant times, Petitioner Brandy's Products, Inc. ("Brandy's"), was a wholesale distributor that supplied more than 2,000 different products to retailers such as gas stations and convenience stores. Among these products were cigarettes, which Brandy's was authorized to sell pursuant to a valid, current permit, and other "tobacco products" besides cigarettes, in accordance with a separate distributor's license, numbered 66-00115. The state of Florida levies an excise tax and a surcharge upon tobacco products. A distributor becomes liable to pay these impositions, e.g., when it brings such goods into the state, or when it ships or transports tobacco products to retailers in the state. Respondent Department of Business and Professional Regulation ("Department" or "DBPR") is the state agency authorized to administer and enforce the laws relating to the taxation of cigarettes and other tobacco products. The following "tobacco products" are taxable under Florida law: loose 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, as defined by s. 210.01(1), or cigars. § 210.25(11), Fla. Stat. (defining "tobacco products")(emphasis added). At all relevant times, Brandy's sold a product that is marketed as a cigar wrapper (or rolling paper) and known colloquially as a "blunt wrap." A blunt wrap looks like this1/ (except for the color, which in reality is a shade of brown): Tobacco is one of the raw materials used to manufacture the blunt wraps at issue, which consequently contain tobacco as an ingredient. The dispute at the heart of this case is whether blunt wraps fall within the definition of "tobacco products" set forth above, as the Department argues, which would make them taxable, or outside of that definition, as Brandy's maintains, which would place blunt wraps beyond the reach of the taxing statutes. The Department's position hardened in the first half of 2009 after a period of internal discussion triggered by Congress's enactment of legislation which expanded the Internal Revenue Code's definition of "roll-your-own tobacco" to include tobacco-based wrappers for cigarettes or cigars, thereby subjecting blunt wraps purchased after March 31, 2009, to taxation at the federal level.2/ Although the Florida Legislature had not similarly amended the relevant statutory definition of "tobacco products" (and has not done so as of this writing), the Department decided that blunt wraps are a form of "loose tobacco suitable for smoking" and thus taxable. The Department declared that July 1, 2009, would be the effective date of its new policy, and it began assessing the excise tax and surcharge on purchases of blunt wraps occurring from that day forward.3/ The Department did not adopt a rule reflecting its decision to treat blunt wraps as a taxable tobacco product, nor did the agency give any official notice to licensed distributors such as Brandy's that the state would start taxing blunt wraps on July 1, 2009. Brandy's had purchased blunt wraps for sale to customers in Florida for some years before July 1, 2009, but during that time had not, in connection with such transactions, remitted to the state any amounts for the excise tax and surcharge on tobacco products. This was because, until July 1, 2009, the Department had never applied the term "tobacco products" as defined in section 210.25(11), Florida Statutes, pursuant to an understanding that it includes blunt wraps. Brandy's, which was unaware of the Department's expansive reinterpretation of section 210.25(11) in 2009, continued doing business after July 1 of that year just as it had before that date. Consequently, Brandy's did not remit to the Department any amounts for the Florida excise tax and surcharge on tobacco products based on purchases of blunt wraps during the two-year assessment period at issue, from July 7, 2009, until August 2, 2011. DBPR routinely audits licensed distributors of tobacco products such as Brandy's. At regular, six-month intervals, an auditor conducts an on-site review of the licensee's books and records pertaining to taxable purchases, comparing the documents to the licensee's tax returns. During the assessment period, Brandy's never produced records showing purchases of blunt wraps because Brandy's reasonably believed such purchases remained nontaxable. The auditors never asked to see records relating to blunt wraps, which would have provided Brandy's some notice, at least, of the Department's new policy. The evidence does not support a finding that Brandy's knowingly withheld or concealed relevant information from the auditors. Unbeknownst to Brandy's, sometime in 2011 or 2012 the Department obtained records from an out-of-state company called National Honey Almond ("NHA"), a supplier of Brandy's. The NHA records included invoices showing the quantities and purchase prices of blunt wraps that NHA had delivered to Brandy's from July 2009 through September 2011. The state excise tax and surcharge had not been paid on these purchases. Using the NHA invoices, the Department calculated that sums totaling $15,911.60 in excise taxes and $38,187.72 in surcharges were due from Brandy's on its so-called "untaxed purchases" of blunt wraps from NHA. Together with interest ($12,358.98) and a penalty of $5,409.93, the Department figured that the total liability was $71,868.23. By letter dated March 1, 2013, the Department asked Brandy's to remit payment of this amount within 10 days after receiving the letter. This letter gave Brandy's its first notice that the Department considered blunt wraps to be a taxable tobacco product, but it failed to inform Brandy's that the assessment could be contested. Nevertheless, Brandy's promptly requested an "informal hearing" and tendered a token payment of $1,500 to show good faith. Following that, the Department——without first conducting a hearing——sent Brandy's a letter dated April 4, 2014, in which the Department's "final request" for payment of $70,368.23 was made. Once again, the Department neglected to advise Brandy's of its right to challenge the demand. Brandy's then filed a written protest of the assessment, by letter dated April 11, 2014. This led to an audit assessment conference on May 13, 2014, at which the Department stuck to its guns. On May 19, 2014, the Department issued its "Notice of Decision and Final Audit Assessment," which demanded that Brandy's pay $70,368.23 within 10 days. The Notice informed Brandy's of its right to request a judicial proceeding or administrative hearing to contest the assessment. Brandy's timely initiated this administrative proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order setting aside the assessment against Brandy's for the excise taxes and surcharges on tobacco products that the Department alleged were due, together with interest and a penalty, on purchases of blunt wraps that Brandy's had made between July 7, 2009, and August 2, 2011. DONE AND ENTERED this 24th day of February, 2015, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 24th day of February, 2015.
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
