The Issue The issue in this case is whether Respondent violated Sections 569.006 and 569.007, Florida Statutes (1995), by selling cigarettes to a person under 18 years of age and by failing to have the cigarette vending machine in the line of sight, and, if so, what, if any, penalty should be imposed pursuant to Florida Administrative Rule 61A-2.022, 2/
Findings Of Fact Petitioner is the state agency responsible for regulating the sale of retail tobacco products. Respondent holds retail tobacco products permit number 58-05704T. The licensed premises are located at 8445 International Drive, Orlando, Florida (the "licensed premises"). Respondent operates the licensed premises for the sale of liquor at tables and a bar. On August 7, 1996, special agents Walter Russell and Linda Greenlee initiated a routine tobacco compliance investigation of the licensed premises. Agents Russell and Greenlee directed investigative aide Megan Holbrook, age 15, to enter the licensed premises and attempt to buy cigarettes from the vending machine. Ms. Holbrook and agents Russell and Greenlee entered the licensed premises at approximately 3:30 p.m. The cigarette vending machine was located just inside the doorway of the licensed premises. Agents Russell and Greenlee sat at the bar. Ms. Holbrook inserted the necessary amounts into the vending machine and purchased one package of Winston cigarettes. None of Respondent's employees questioned Ms. Holbrook concerning her age or identification. Approximately three employees were engaged in a conversation behind the bar during the time that Ms. Holbrook purchased the cigarettes. No patrons were present at the time except Ms. Holbrook and agents Russell and Greenlee. The cigarette vending machine was positioned so that a person standing behind the bar could not see the face of anyone purchasing cigarettes unless the purchaser was at least six feet tall. A view of the purchaser is obstructed by beams and shelves. The vending machine is approximately five feet tall. It is not in the direct line of sight of an employee who is responsible for monitoring the purchase of cigarettes. Ms. Holbrook and agents Russell and Greenlee exited the premises after the purchase. Ms. Holbrook turned over the cigarettes to agents Russell and Greenlee. Agents Russell and Greenlee returned inside the premises. They advised the employees inside that an unlawful sale of cigarettes had occurred and served the required documents.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Sections 569.06 and 569.07 and imposing a fine of $750. DONE AND ENTERED this 18th day of November, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1997.
Findings Of Fact Respondent is the holder of a beverage license grand-fathered in by Section 561.20(2)(b), Florida Statutes (1975), which has as a condition that respondent maintain facilities for serving full course meals to 200 patrons. After being closed for some years, respondent reopened for business on May 13, 1977. David Maloney was hired as cook and manager and became an officer of respondent. On June 3, 1977, Mr. Grady Leon Broxton, Jr., a beverage officer in petitioner's employ, inspected respondent's premises and inventoried chairs, tables, and tableware. He found 204 chairs and 51 tables, 176 plates, 125 forks, 80 knives, 250 bread dishes, 250 salad bowls, 86 cups and less than 200 spoons. Accordingly, Officer Broxton issued a formal notice of these deficiencies, directing respondent to bring up to 200 the numbers of plates, spoons, forks, knives and cups. When Officer Broxton returned on June 9, 1977, he found that respondent had cured the deficiencies and was in full compliance with the conditions of its license. By enacting Florida Laws Chapter 77-409, the 1977 Legislature increased the excise tax on packages containing 20 cigarettes from 17 to 21 cents per package, effective July 1, 1977, Florida Laws, Chapter 77-409, ss. 1 and 5. On July 7, 1977, Officer Broxton entered respondent's premises and advised David Maloney that he should multiply by $.04 the number of cigarette packages respondent had for sale on July 1, 1977, and send a check or money order in that amount to petitioner. Officer Broxton noticed approximately five cartons of cigarettes on the premises at that time. On July 10, 1977, David Maloney wrote petitioner that, as of July 1, 1977, "only two packs of cigarettes were on hand," petitioner's exhibit No. 2, and enclosed a check in the amount of eight cents ($.08). In the cover letter, Mr. Maloney addressed petitioner's employees as "you Assholes." Shortly after mailing the letter and check, Mr. Maloney quit respondent's employ without notice. When respondent's president, William B. Miller, III, discovered that Mr. Maloney had left, he also noticed that cigarettes, liquor and silverware were missing. On July 21, 1977, petitioner's Lieutenant George Fader entered respondent's premises and noticed customers drinking alcoholic beverages at the bar. He introduced himself to Mrs. Miller, who was behind the bar. She said the eight cents ($.08) must have been a mistake and that Mr. Maloney had gone but that she did not know where. Lt. Fader noticed that there was a pool table in the restaurant. At the time of Lt. Fader's visit, Mr. Miller was at respondent's bank putting in stop payment orders for fear Mr. Maloney might have drawn checks on respondent's account for unauthorized purposes. Before leaving, Lt. Fader made a hurried count of chairs, exclusive of folding chairs, and concluded that there were some 185 on the premises. The following day, Lt. Fader and Officer Broxton returned to respondent's premises and advised Mr. Miller that respondent could be charged criminally with tax fraud. When petitioner's agents told Mr. Miller that they estimated that there were 60 packages of cigarettes on the premises on July 1, 1977, Mr. Miller offered to write a check for two dollars and forty cents ($2.40). Mr. Miller wrote petitioner a check, but, at Lt. Fader's suggestion, the amount was reduced by eight cents ($.08) to two dollars and thirty-two cents ($2.32). Officer Broxton counted 44 tables and 140 chairs, excluding folding chairs, even though he had included these on his earlier visit. He did not count folding chairs on July 22, 1977, because Lt. Fader directed him not to. Officer Broxton found 121 teaspoons, 112 forks, 154 knives and 118 cups on July 22, 1977. Lt. Fader told Mr. Miller that there need not be 200 cups, if glasses and cups together numbered 200 and if there were 200 water glasses. There was no evidence as to the number of glasses on respondent's premises on July 22, 1977.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner assess a civil penalty against respondent's license in the amount of twenty-five dollars ($25.00). DONE and ENTERED this 27th day of February, 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: Mr. Francis Bayley, Esquire The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Mr. W. R. Phillips, Esquire Post Office Box 594 Carrabelle, Florida 32322
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
Findings Of Fact At all times material to the allegations contained herein, Respondents held alcoholic beverage license No. 64-00029 for the Palatka Blue Diamond, located at 424 North 11th Street, Palatka, Florida. Alphonso S. Junious is a beverage investigator with the Fort Lauderdale office of the Division of Alcoholic Beverages and Tobacco and has been so since August 1971. [During that period of time, he has investigated seven cases for Petitioner which involved marijuana.] He has had considerable specialized training in drug identification, having been a drug and alcohol specialist while in the military, and since his discharge has taken several courses in drug identification and detection, including 80 hours training with the U.S. Drug Enforcement Agency. He is able to identify marijuana by sight and smell based not only on his formalized training and experience as an adult, but also from the fact that he used it when he was younger. On May 12, 1982, pursuant to instructions given him as a part of an investigation into Respondents' premises, he entered the Palatka Blue Diamond, went to the bar and ordered a beer. Leroy Lane and Queen Ester Simmons, whom he subsequently identified by name, were working behind the bar, selling drinks. While there, he noticed the smell of marijuana smoke and also saw people in the bar area making what appeared to him to be marijuana cigarettes. He identified them from the way they were rolled; a method consistent with what he recognized as hand-rolled marijuana cigarettes. The cigarettes were small and had crimped ends. The smokers utilizing these cigarettes were at the bar at the time in plain view of the bartenders, neither one of whom made any effort to stop this course of conduct. On May 14, 1982, he again went to the Palatka Blue Diamond and stood at the bar. The same two bartenders were there. He saw an unidentified black female sitting at the bar roll what appeared to him to be a marijuana cigarette. The paraphernalia with which she was making the cigarette was sitting out on top of the bar, and the bartenders were standing approximately 6 to 8 feet away. During the entire time he was there, he did not hear either bartender attempt to stop the young lady from making the cigarette. By the same token, he did not see her smoke it, either. He did, however, observe others smoking what appeared to be, and smelled to him like, marijuana while walking about the barroom and in the disco room. Some of these individuals could have been in view of the bartender, but the witness does not know if they were or if the bartenders in fact saw anything improper. Mr. Junious again was at the bar on May 16, 1982. At that time he observed a black male, subsequently identified to him as Luke Simmons, tending bar. Luke Simmons is Willie Lee Simmons, Jr., son of the licensee and Respondent Willie Lee Simmons. On this occasion, Officer Junious did not observe any marijuana being smoked, but he did observe Luke Simmons make sales of small manila envelopes to patrons at the bar. Junious could not hear the conversations regarding the sales and does not know what was in the envelopes sold to other people. However, somewhat later that day, he went over to Luke and asked Luke for a "nickel bag." In return, he was given a small manila envelope, folded and sealed at both ends, for which he paid $5. This bag closely resembled the bags he saw Luke Simmons sell to others. Junious did not look into the bag while on the premises, but it was subsequently turned over to the evidence custodian of the agency and thereafter properly identified as marijuana. Junious went back to the Palatka Blue Diamond on May 18, 1982, and again Luke Simmons was tending bar. Junious approached him and engaged him in general conversation. Again this evening, he saw several persons smoking what appeared to be hand-rolled marijuana cigarettes, and the smell of marijuana was prevalent both in the bar and in the disco room. Again, as in previous occasions, the individuals smoking these hand-rolled cigarettes were in plain view of the bartender had he looked, but Junious did not see or hear Luke Simmons attempt to stop any of this conduct. At approximately 9:30 that evening, Junious again approached Luke Simmons and asked for a "nickel bag" for which he paid Luke the sum of $5. In return, he got a similar manila envelope as on the previous occasion which was subsequently determined by the Florida Department of Law Enforcement crime lab in Jacksonville to contain marijuana. It was not until August 13, 1982, that Officer Junious went back to the Palatka Blue Diamond. When he entered on this occasion, he sat at the bar and ordered a beer. The bartender this time was a black female subsequently identified as Linda Simmons, who is not related to either Respondent. On this occasion, Linda Simmons was playing a card game which the witness called "Black Jack" with a black male at the bar. They appeared to be betting $1 per hand. Junious asked Linda if he could join the game and himself played two hands during which he bet on each hand and lost both times for a total of $2. Later that evening, he saw another black male subsequently identified as Rudy Swindler selling small manila envelopes similar to those he had purchased earlier in the year. He observed Linda in a conversation with Rudy and heard her try to convince him to give her three marijuana cigarettes. Rudy refused to do so, but offered to sell her a nickel bag. She did not offer to buy. Throughout this entire transaction between Swindler and Linda Simmons, at no time did Linda Simmons, acting in the capacity of an employee of the Respondent, make any effort to prevent Swindler from selling what both recognized as marijuana. Junious went back to the bar on August 26, 1982. When he entered this time, he immediately saw a black female identified as Marian MacRae and otherwise known as "Mulu," selling the similar type of manila envelope. Junious personally observed Mulu sell at least three while in the disco, but because of that location it is possible that the bartender, Linda Simmons, might not have seen her engaged in this type of conduct. This evening, Junious smelled what to him was marijuana pervading the establishment, but he cannot conclude that he actually saw anyone else smoking, selling, or in any way using that substance. When Officer Junious went into the bar again on September 3, 1982, he observed that the odor of marijuana was very heavy. Linda was the bartender along with Leroy Lane, and Junious saw people sitting at the bar smoking, as well as in other areas of the premises. The bartenders were between 4 and 6 feet away from people who were smoking. These cigarettes, smoked by these people sitting at the bar, were small, apparently hand-rolled, and twisted at the end; and Junious's training leads him to conclude that these cigarettes are usually marijuana. Another black female whose name is unknown came in and started tending bar. After this individual became the bartender, Officer Junious noticed an unidentified black male standing at the bar, selling the manila envelopes. This individual was close enough to Junious (directly opposite him) so that Junious could see what was going on. On this evening, he saw this individual make at least three sales of manila envelopes which he took from a cloth bag with a drawstrng. On this same date, there were at least five people selling these manila envelopes, including Marian MacRae, in the bar. Junious came back to the Palatka Blue Diamond on September 23, 1982. On this occasion, he did not observe anyone selling the manila envelopes, but he did see people sitting in the bar smoking what appeared to be, and smelled like marijuana. Linda Simmons and Leroy Lane were the bartenders that night, but it is quite possible that because of the fact that the smokers were in the disco, which was not readily observable from the bar, both Lane and Simmons might not have seen the smoking. However, in Junious's opinion, the smell of marijuana was so prevalent that it would have been difficult for them not to notice it. Junious again returned to the bar on September 24, 1982. As he walked up to the bar door from the outside, he saw a barbecue grill and a black male identified as "Short Man" tending the barbecue. Junious saw Short Man, otherwise identified as "Dunnell," selling the manila envelopes openly while working at the barbecue and while Junious was standing there talking to him. In fact, Junious himself bought a "nickel bag" from Dunnell, paying the $5. This bag was subsequently identified as containing marijuana. The barbecue was approximately 15 feet from the front door at the time that the sale was made. After leaving Dunnell, Junious went to his car and placed the manila envelope he had just bought inside. Then he went back to the Palatka Blue Diamond and, when he entered, he saw Marian MacRae again selling the manila envelopes both inside and outside the bar. While inside, she spent the majority of the time in the disco; and Junious later saw her seated with some other individuals smoking what appeared to be, and smelled like, marijuana. Junious noticed this when he passed her and went to sit at the next table to her, asking to buy from her a nickel bag. When he did this, she opened a black purse from which she took a small manila envelope, and he paid her the sum of $5. This envelope was subsequently identified as containing marijuana. When he came back into the bar after having put that manila envelope in the trunk of his car, he stood at the west end of the bar, from which he could see what was going on in the disco. He saw a black male, subsequently identified as "Quiller Elkins," shooting pool. This individual had a blue cloth bag with a drawstring in his pants pocket. When individuals would come up to him, he would take out the bag and make sales of small manila envelopes from it. Junious personally observed three of these sales being made before he went up to Elkins and commented on his pool skills. He also asked Elkins for a nickel bag, which he subsequently bought from Elkins for $5. This entire transaction was openly conducted, and Linda and Leroy were tending bar at the time. Because of the location of the pool table, he cannot be sure that this sale was observed. On October 15, 1982, Officer Junious went back to the Palatka Blue Diamond and found Linda Simmons and Leroy Lane again bartending. On this occasion, he observed the smoking by various people of what appeared to be, and smelled to be, marijuana, but saw no sales. The smokers were walking around inside and outside the bar, and others were inside the disco area. On no occasion did he see or hear the bartenders make any attempt to stop the patrons from smoking these cigarettes. When Junious went back to the Palatka Blue Diamond on October 22, 1982, Linda Simmons and Leroy Lane were again tending bar. On this occasion, Juniors did not see any sales of manila envelopes, but he saw people smoking what appeared to be, and smelled to be, marijuana; and again, as on previous occasions, in his opinion, the bartenders could see them smoking, but made no effort to stop them. His last visit to the Palatka Blue Diamond was on October 30, 1982, when again Linda Simmons and Leroy Lane were tending bar. On this occasion, he saw patrons smoking, but saw no sales. Again, as on previous occasions, he recognized the smell of the burning substance and the appearance of the cigarettes being smoked was that of the hand-rolled marijuana cigarette. On this occasion, while the bartenders could have seen what was going on, he does not know if, in fact, they did. In any case, no one in authority at the bar said anything about the smoking to any of the patrons. None of the cigarettes observed being smoked by Officer Junious nor the smoke, which he identified as marijuana smoke, was analyzed. However, the degree of expertise evidenced by Officer Junious, based on his experience and training, is sufficient to tip the evidentiary scale toward a finding that those hand-rolled cigarettes, which to him appeared to be marijuana cigarettes and to him smelled like marijuana cigarettes, were in fact marijuana cigarettes; and this finding is hereby made. With regard to the purchase from Quiller Elkins on September 24, 1982, Officer Junious does not know if anyone working for the Simmonses at that time saw him make that purchase or, even if they had seen the purchase made, that they would know what the purchase was. There is no evidence to establish that, in any case, Quiller Elkins was an employee of the Respondents. With regard to the purchase outside the establishment from the barbecue cook, Short Man, again Junious does not know if anyone in authority from inside the bar saw the sale being made or for that matter, if they had seen it, would know what was in the envelope. There is no evidence that Marian MacRae (Mulu) was an employee, and Officer Junious himself does not know whether she was or not. However, on the several occasions he was there, he never saw her tending bar or doing any other work there. He also cannot say that any employee of the establishment saw him make the buy from Mulu on August 26, at least. He also cannot state with any degree of certainty whether any of the employees saw him make the purchase from Rudy with regard to that purchase. This individual does not deny using marijuana with Officer Junious. While he does not recall the exact date, he states that Junious asked him if he, Rudy, knew where he could get any marijuana and he, Rudy, got it for him. They smoked it together on two separate occasions in Rudy's car. While Swindler's recitation that he smoked with Junious is somewhat suspect because of several inconsistencies, there is little doubt that he sold either directly or as an intermediary. In fact, Junious indicates Rudy was a connection with whom he, Junious, palled around while in Palatka on the investigation. He used Rudy to introduce him around in the neighborhood. Willie Lee Simmons, Sr., one of the Respondents and a longtime resident of Palatka, Florida, has been a co-owner of the Palatka Blue Diamond since 1970 or 1971, and he has had a state beverage license since that time. Though he is one of the owners of the establishment, he works there only on Sunday afternoons to tend bar, working from 5:30 in the evening until midnight for the last 7 or 8 years. During all this time, no one has ever approached him to buy marijuana; he does not smoke it himself; nor does he have any familiarity with it. He has seen people smoking there, but was under the impression that what was being smoked were cigarettes. He is in the migrant labor business, as well as a part-owner of the bar, and he recognizes many of his bar patrons as his employees in the field. These migrant workers, he says, often smoke a type of tobacco called "Bugle" tobacco, which they hand-roll into cigarettes. He feels these hand-rolled tobacco cigarettes could well be confused with marijuana cigarettes. Mr. Simmons contends he has a completely clean record in Putnam County and with the Division of Alcoholic Beverages and Tobacco. If he had had any knowledge that marijuana cigarettes were being smoked in his bar, he would have stopped it immediately, but he has never been given any indication that marijuana was a problem in his establishment. The police, who have been in his bar on many occasions, have never mentioned to him the smell of marijuana, nor have there ever been, to his knowledge, any marijuana arrests or searches conducted in his establishment prior to those set out in the Notice to Show Cause. Johnny Lee Simmons, the son of Willie Lee Simmons, is also a part- owner of the Palatka Blue Diamond. He works on Sundays during the day before his father comes on duty at night. He knows what marijuana is and has seen other people smoke it. He believes he could identify the smell of marijuana smoke. He admits that his patrons smoke in the bar. In fact, the bar sells cigarettes and cigars, as well as "Bugle" tobacco, a cheap, low-grade loose tobacco referred to by the other Mr. Simmons. On several occasions, he has stopped the smoking of what he thought was marijuana in the bar and found out that it was Bugle tobacco. When he does catch someone smoking marijuana, he immediately puts them out of the bar and, in fact, Mulu has been put out several times for trying to sell marijuana in the premises. To counter the threat of marijuana transfer, Leroy Lane was hired to keep out minors and drugs, and in this witness's opinion, has done a pretty good job of it. Mr. Simmons feels he has done a good job in exercising control over the place to keep narcotics out, but he admits that neither he nor anyone else is perfect. Sometimes he does not get it all. He contends he has contacted the police on several occasions to get help with drug traffic and gambling. He used to sell cards in the bar and has seen card games conducted there. However, when he reread the manual furnished by the Petitioner, which indicated that gambling is not appropriate or permitted, he immediately got rid of the cards; no longer sells them; and no longer permits card playing in the premises. His sister, the lady allegedly involved in the gambling transaction, is not a gambler. In his opinion, the card games she was in were probably friendly games engaged in to pass the time during the slack periods. To his recollection, the only gambling ever conducted in the Palatka Blue Diamond was carried on by old retired men who spent a lot of time there and who passed the time playing cards. These individuals got angry with him, he contends, when he stopped it The denial of the Simmonses that marijuana is frequently utilized in the Palatka Blue Diamond was supported by the testimony of John J. Melton, a Deputy sheriff with the Putnam County Sheriff's Office, who, himself, is familiar with both the appearance and the smell of marijuana and has made arrests for the possession of marijuana in the past. Officer Melton goes into the Palatka Blue Diamond frequently--three to four times a week--and has done so both on and off duty for the past three years. If he goes in while on duty, he is there for between 15 and 20 minutes; if off duty, for between three and four hours. In any case, he has never seen anyone selling the small manila envelopes when he was in there, nor has he ever seen any card playing or gambling going on. If he were to see anyone involved in any unlawful activity, he would arrest them if in uniform and on duty. If not, he would notify the manager. He does not believe that anyone would smoke in front of anyone who they knew to be a police officer. Palatka is a small town and, by his own admission, he and other police officers are well known to the general public both when in and out of uniform. Consequently, his testimony establishes only that no illegal activity went on while he was in there. These sentiments were echoed by Abraham Smith, a retired U.S. Customs agent who has a working familiarity with marijuana, its appearance, and its smell from his 32 years in Customs work. Since he moved to Palatka in May of 1982, he has been in the Palatka Blue Diamond three to four times a week for an hour or two at the time. He is familiar with the types of small manila envelopes used for the sale of small amounts of marijuana and has seen them many times, but never in the Palatka Blue Diamond. He has never smelled marijuana nor seen marijuana in that establishment. Harold Lightfoot, the salesman for the Eli Witt Tobacco Company who has been selling to the Palatka Blue Diamond for 15 years, including to the prior ownership, comes in once a week in the early afternoon. He also knows what marijuana is and can recognize the appearance and smell, but has never smelled the odor in the Palatka Blue Diamond nor ever seen any sales of manila envelopes while there. Another frequent patron is James Williams, Jr., a retired Army noncommissioned officer who has patronized the Palatka Blue Diamond daily since his retirement from the Army in June 1980. He usually goes in for several hours in midday and then for several hours in the evening. He is familiar with the appearance and smell of marijuana because of the training he received in the military and is also familiar with the small manila envelopes used in marijuana sales. To his knowledge, he has never smelled marijuana smoke in the Palatka Blue Diamond nor has he ever seen sales of small manila envelopes. Leroy Lane, the lead bartender at the Palatka Blue Diamond for the past six to nine years, lives upstairs from the bar and tends bar from early evening to closing. He has seen several marijuana cigarettes outside the bar. He is familiar with its appearance and its smell, and he has seen people in the bar start to smoke marijuana. When he observes it, he puts them out and, if they refuse to leave, calls the police. For the past three to four years, there have been signs on the wall prohibiting the use or sale of marijuana on the premises, placed there at the direction of the owners and, also at their direction, he patrols the bathrooms. Mr. Lane knows of Marian MacRae (Mulu) by reputation. At first he stated he would not know if he would recognize her if he saw her, but later indicated that she is outside the bar frequently. Because of her reputation, when she comes in the bar, he asks her to leave. He denies knowing Short Man and several other regular patrons by name because he does not ask customers their names nor does he ask them the stories of their lives. His credibility is not significant. Queen Esther Simmons, the wife of Johnny Simmons for 16 years, is also a bartender in the Palatka Blue Diamond. She swaps shifts with Linda Simmons, the sister of Johnny and the daughter of Willie Simmons. Queen Esther contends she has never seen marijuana nor has she seen any transfers of the envelopes in the bar. She claims she does not know what a marijuana cigarette is nor has anyone ever told her what they look like so she could keep them out. It is Leroy Lane's job to do that. However, never having seen nor smelled marijuana, if she smells what she thinks is marijuana, she calls out, "If anyone here is smoking marijuana, leave or I'll call the police." Queen Esther Simmons' credibility is totally lacking, and her testimony has no probative value whatsoever.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: Respondents' alcoholic beverage license No. 64-00029 be revoked. RECOMMENDED this 19th day of June 1984, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 19th day of June 1984. COPIES FURNISHED: Louisa E. Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Angus W. Harriett, Esquire 314 St. Johns Avenue Palatka, Florida 32077 Mr. Gary R. 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 This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent and his license, including suspension or revocation of the license, on the basis of allegations that the Respondent interfered with a DABT law enforcement sergeant who was inspecting his licensed premises, committed battery on the sergeant, and resisted arrest with violence.
Findings Of Fact Since June 27, 1990, the Respondent, Heck Prowse, has continuously held license number 23-11121, series 2-APS, issued by the Division of Alcoholic Beverages and Tobacco. That license authorizes him to sell alcoholic beverages on the business premises known as Five Boros Food Mart, Inc., located at 19817 Northwest 2nd Avenue, Miami, Dade County, Florida. At approximately 4:45 p.m. on July 1, 1990, Sergeant Carol Houston entered the licensed premises described above. Sergeant Houston's purpose for visiting the licensed premises was to inspect the premises for compliance with a new cigarette floor tax and to make sure that licensees were aware of the new tax. On that day Sergeant Houston was acting in her capacity as a sworn law enforcement officer of the Division of Alcoholic Beverages and Tobacco and was in the course of performing her official duties as a sworn law enforcement officer. Upon entering the licensed premises described above, Sergeant Houston approached the Respondent, who was inside the licensed premises, identified herself to the Respondent, and explained to the Respondent her reason for being there. In the course of identifying herself to the Respondent, Sergeant Houston displayed to him her law enforcement credentials which contained both a photo identification card and a badge, both of which identified her as a law enforcement officer of the Division of Alcoholic Beverages and Tobacco. At Sergeant Houston's request, the Respondent counted all of his visible cigarette inventory and reported a total of 176 packages of cigarettes. Based on her experience with similar size stores, Sergeant Houston was of the opinion that the reported inventory was unusually low, and she asked to see the Respondent's invoices for cigarette purchases. Shortly after the request for the invoices, the Respondent became very uncooperative. Along with trying to prevent Sergeant Houston from seeing the invoices, the Respondent began to speak to Sergeant Houston in a very vulgar and abusive manner. Once things had calmed down, Sergeant Houston again showed her credentials to the Respondent and explained to him that she was authorized by law to inspect everything in the premises. Eventually the Respondent provided the invoices. After reviewing the invoices, Sergeant Houston asked if there were any more cigarettes on the licensed premises. The Respondent replied that there were not. Thereupon, Sergeant Houston began to inspect storage cabinets on the licensed premises, but was unable to inspect one cabinet because the Respondent was standing in front of it blocking access to the cabinet. Once again the Respondent became angry and spoke to Sergeant Houston in a very vulgar and abusive manner. Sergeant Houston eventually prevailed upon the Respondent to move out of the way. Inside the cabinet that had been blocked by the Respondent, Sergeant Houston found approximately 40 additional cartons of cigarettes. At that point Sergeant Houston orally advised the Respondent that he was under arrest for interfering with the performance of her official duties. Sergeant Houston then told the Respondent to sit down, which he did, and to provide identification, which the Respondent refused to do. Sergeant Houston then proceeded to call her office to report the situation and while she was talking on the telephone the Respondent attempted to leave the premises. Sergeant Houston dropped the telephone, chased after the Respondent, and put an arm around his neck to keep him from leaving the building. The Respondent thereupon shoved and hit Sergeant Houston several times, including hitting her in the chest with his fist, in an effort to get away. Once Sergeant Houston succeeded in restraining the Respondent, she returned to the telephone and advised her supervisor of her location. The supervisor, who had heard the struggle over the telephone, was concerned for Sergeant Houston's safety. The supervisor called the Metro Dade Police and asked them to send assistance to Sergeant Houston, which they did. In cases involving battery on a law enforcement officer, obstruction of a law enforcement officer, or resisting arrest with violence, if the violation is committed by the licensee, it is the established policy of the Division of Alcoholic Beverages and Tobacco to revoke the license. The sale of cigarettes, beer, and wine account for more than half of the sales volume at the Respondent's store on the licensed premises. Revocation of the Respondent's alcoholic beverage license would have a devastating impact on the economic viability of the Respondent's business.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Division of Alcoholic Beverages and Tobacco issue a Final Order in this case finding that the Respondent is guilty of the violations charged in the first three counts of the Amended Notice To Show Cause and concluding that the appropriate penalty is the revocation of Respondent's license number 23-11121, series 2-APS, for the premises located at 19817 Northwest 2nd Avenue, Miami, Dade County, Florida. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 17th day of March 1992. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of March 1992.
