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.
The Issue At issue is whether respondent committed the offense alleged in the administrative action and, if so, what disciplinary action should be taken.
Findings Of Fact The offense At all times pertinent hereto, respondent, Rodi Enterprises Corporation d/b/a La Ferrolana Supermarket, held alcoholic beverage license number 23-00094, series 2-APS, for the premises located at 3380 N.W. 7th Street, Miami, Florida. Rolando Nunez is an owner and president of the licensee. On July 22, 1994, Leonard Del Monte, an investigator employed by the Division of Alcoholic Beverages and Tobacco, entered the licensed premises to conduct a routine inspection. At that time, Inspector Del Monte discovered nine packages of Benson & Hedges Menthol 100's cigarettes in a display rack over the counter, each of which bore a fraudulent tax indicia and on which the excise tax had not been paid as required by law. Each cigarette package contained twenty individual cigarettes, and such packages, considering their location, were obviously offered for sale to the general public. Apart from the nine packages of untaxed Benson & Hedges Menthol 100's, Inspector Del Monte discovered no other untaxed cigarettes on the premises, which, at the time, contained approximately 300 other packages of cigarettes, as well as approximately 300 cartons of cigarettes, for sale to the general public. Indeed, this is the first occasion in over fifteen years of operation that respondent has ever been cited with a violation, and the first time Inspector Del Monte has ever discovered a violation in the fourteen or fifteen years he has been inspecting the premises. The reason for the offense Ovilio Reyes is a long-time customer of respondent, and purchased a carton of Benson & Hedges Menthol 100's from a vendor who sells, among other things, cigarettes from a lunch truck outside the factory where he works. Since he did not like the menthol taste, Mr. Reyes prevailed upon Mr. Nunez, an owner and president of petitioner, to exchange the nine packages that remained from the carton he had purchased for nine packages of Winston cigarettes. Mr. Nunez noted the stamp on the bottom of the packages, assumed it was valid, and agreed to the exchange. Thereafter, Mr. Nunez placed the packages in the display rack for resale. Having considered the proof, Mr. Nunez' testimony that he believed the packages to carry an appropriate stamp and that he had no intention of selling untaxed cigarettes is credited. Indeed, had Mr. Nunez thought the stamp was a forgery, it is doubtful that he would have placed them in the display rack so that the stamp was plainly visible to a customer or, in this case, an inspector standing at the counter. Moreover, for the untrained, a cursory glance at the stamp would not raise a suspicion as to its validity. It is only when one is apprised, as through the proof in this case, that a tax indicia must be stamped in purple ink as opposed to the black ink used on the subject packages, that the stamp was not affixed evenly on the bottom of each package as it should be, that the stamps used are slightly longer than the standard stamp, that the scallops or ornamental edge around the rectangular stamp did not match the scallop of a valid indicia, and that the subject packages, upon close inspection, contained the phrase "Tax No," as opposed to the proper phrase "Tax Paid," that one would have cause to suspect the legitimacy of the stamp in question. Notable, petitioner has not shown by rule or otherwise that it has advised its licensees in general or respondent in particular of the factors that should be considered in assessing the authenticity of a tax indicia.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered finding respondent guilty of the offense as charged, and directing respondent to pay a $50.00 civil penalty and the excise tax of $3.59. 1/ DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th 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 4th day of January 1995.
The Issue Whether or not on or about August 10, 1978, the Respondent, Brian H. Strickland, a wholesale dealer, handling, transporting or possessing cigarettes for sale or distribution within the State, failed to file with the Division of Alcoholic Beverages and Tobacco all reports on or before the tenth day of the month, contrary to Subsection 210.09(2), Florida Statutes. Whether or not on or about September 10, 1978, the Respondent, Brian H. Strickland, a wholesale dealer, handling, transporting or possessing cigarettes for sale or distribution within the State, failed to file with the Division of Alcoholic Beverages and Tobacco all reports on or before the tenth day of the month, contrary to Subsection 210.09(2), Florida Statutes. Whether or not on or about October 10, 1978, the Respondent, Brian H. Strickland, a wholesale dealer, handling, transporting or possessing cigarettes for sale or distribution within the State, failed to file with the Division of Alcoholic Beverages and Tobacco all reports on or before the tenth day of the month, contrary to Subsection 210.09(2), Florida Statutes.
Findings Of Fact This cause comes on for consideration based upon a Notice to Show Cause filed by the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, against Brian H. Strickland, who trades as Smoke Rise Vending Service, located at 8454 Royalwood Drive, Jacksonville, Florida. The purpose of the Notice to Show Cause was for taking action against the permit No. 26-128 CWD, issued to the Respondent, Brian H. Strickland, as permittee, by the State of Florida, Division of Alcoholic Beverages and Tobacco. The allegations contained in the Notice to Show Cause are these allegations as set forth in the issue statement of this Recommended Order. At the beginning of the hearing, the parties, by an oral stipulation, agreed that the Respondent, Brian H. Strickland, no longer held the permit No. 26-128 CWD after October 31, 1978. In view of this fact, the threshold question arises concerning the jurisdiction of the Petitioner to take further action against the Respondent, Brian H. Strickland, when in fact this Respondent no longer holds a permit issued by the Petitioner. Section 210.16, Florida Statutes, establishes the right of the Petitioner to take disciplinary action against permitees. The language of that provision states: "210.16 Revocation or suspension of permit.-- The Division of Alcoholic Beverages and Tobacco is given full power and authority upon sufficient cause appearing of the violation of any of the provisions of this chapter by any wholesale dealer receiving a permit to engage in business under this chapter to revoke the permit of such wholesale dealer. The division may suspend for a reasonable period of time, in its discretion, the permits of wholesale dealers issued under the provisions of this chapter for the same causes and under the same limitations as is authorized hereunder to revoke the permits of such wholesale dealers. No wholesale dealer whose permit for any place of business has been revoked shall engage in business under this chapter at such place of business after such revocation until a new permit is issued to him. No wholesale dealer whose permit for any place of business has been revoked shall be permitted to have said permit renewed, or to obtain an additional cigarette permit for any other place of busi- ness, for a period of 6 months after the date such revocation becomes final. In lieu of the suspension or revocation of permits, the Division of Alcoholic Beverages and Tobacco may impose civil penalties against holders of permits for violations of this chap- ter or rules or regulations relating thereto. No civil penalty so imposed shall exceed $1,000 for each offense, and all amounts collected shall be deposited with the State Treasurer to the credit of the General Revenue Fund. If the holder of the permit fails to pay the civil penalty, his permit shall be suspended for such period of tins as the division may specify. An analysis of these provisions leads to the conclusion that the Petitioner may not take action against a Respondent, unless that Respondent is currently the "holder" of a permit. Therefore, in view of the fact that Strickland's permit has not been effective since October 31, 1978, the Petitioner has no right to seek further action against the permit either in the form of revocation, suspension or fine.
Recommendation It is recommended that the case reported as Division of Alcoholic Beverages and Tobacco, No. 27011-A, which has been filed against the Respondent, Brian H. Strickland, t/a Smoke Rise Vending Service, be DISMISSED. DONE AND ENTERED this 13th day of April, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Francis Bayley, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Brian H. Strickland t/a Smoke Rise Vending Service 8454 Royalwood Drive Jacksonville, Florida J. M. Ogonowski Richard P. Daniel State Building, Suite 514 111 East Coast Line Drive Jacksonville, Florida
The Issue Whether Petitioner, MB Doral is entitled to attorneys’ fees and costs pursuant to section 120.595(3), Florida Statutes (2019), and Florida Rule of Appellate Procedure 9.400; and if so, the amount.
Findings Of Fact On December 21, 2018, MB Doral filed a Petition Challenging Validity of Existing Rule 61A-4.020 and Determination Regarding Unadopted Rule, in DOAH Case No. 18-6768RX. The undersigned bifurcated the unadopted rule challenge and conducted a final hearing on the existing rule challenge on January 24, 2019. On February 21, 2019, the undersigned entered a final order that concluded that rule 61A-4.020 was a valid exercise of delegated legislative authority. MB Doral appealed the final order to the First District Court of Appeal. On April 27, 2020, the First District Court of Appeal issued an Opinion that reversed the Final Order and concluded that rule 61A-4.020 was an invalid exercise of delegated legislative authority. MB Doral, LLC, d/b/a Martinibar v. Dep’t of Bus. & Prof’l Reg., Div. of Alcoholic Bev. & Tobacco, 2020 WL 1987120 (Fla. 1st DCA April 27, 2020). On May 22, 2020, MB Doral filed a Motion for Attorneys’ Fees and Costs (Motion), seeking an award of attorneys’ fees and costs incurred in the existing rule challenge and subsequent appeal, pursuant to section 120.595(3), Florida Statutes, and Florida Rule of Appellate Procedure 9.400. On June 4, 2020, the Department filed a Notice of Filing Joint Stipulation for Attorneys’ Fees and Costs, which included the Joint Stipulation for Attorneys’ Fees and Costs. The Joint Stipulation states that the Department agrees to the entry of a final order assessing the sum of $24,000.00 for attorneys’ fees and costs in the existing rule challenge and subsequent appeal, which the undersigned bifurcated from the unadopted rule challenge in DOAH Case No. 18-6768RX. The Joint Stipulation further states that the parties agree that the Final Order direct the Department to seek immediate approval for payment within 30 days of the Final Order, and that the undersigned retain jurisdiction to enforce the terms of the Final Order.
The Issue Whether the Respondents committed the violations alleged in the Administrative Action dated June 22, 2004, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Division is the state agency charged with administering Florida's alcoholic beverage and tobacco law. § 561.02, Fla. Stat. (2004). The Food Mart holds a Series 2-APS license, numbered 16-13705. On June 2, 2004, the Division conducted an inspection of the premises of the Food Mart. The inspector found six bottles filled with a cream-colored liquid. One bottle was on the counter, next to the cash register, and the other five bottles were inside a cabinet behind the cash register, wrapped in newspaper. The bottles contained a homemade Haitian beverage called cremasse. A friend made the beverage for Mr. Cebatien Dierestil, who intended to serve the beverage at a party at his home. The person who made the beverage took the six bottles to the Food Mart to give it to Mr. Dierestil, but Mr. Dierestil was not in the store at the time. A Food Mart employee placed the bottle of cremasse on the counter, even though it was for Mr. Dierestil's personal use. Cremasse contains a small amount of alcohol, but Mr. Dierestil did not know the exact amount. During the inspection of Food Mart on June 2, 2004, the Division found 97 packages of cigarettes offered for sale that did not carry the stamps indicating that the applicable taxes had been paid on the cigarettes. Some of the 79 unstamped packages of Newport cigarettes and of the 18 unstamped packages of Marlboro cigarettes were commingled with other packages of cigarettes displayed over the cash register, and others were in full cartons placed in the area where the extra inventory of cigarettes was kept. The cigarettes were purchased from a person that came by the Food Mart, and the invoice for the cigarettes was not among the invoices Mr. Dierestil provided to the Division's inspectors. Mr. Dierestil was not aware that the cigarette packages were supposed to carry tax stamps. The Division failed to present evidence establishing the alcoholic content of the liquid inside the bottles found at the Food Mart.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco enter a final order Dismissing Count 1 of the Administrative Action against Cebatien and Marc Dierestil; Finding that Cebatien and Marc Dierestil violated Sections 210.18(1) and 210.15(1)(h), Florida Statutes; Finding that, because of these statutory violations, the Division is authorized to impose administrative penalties on Cebatien and Marc Dierestil pursuant to Section 561.29(1) and (3), Florida Statutes; Imposing an administrative fine in the amount of $500.00 and ordering payment of the excise tax owing on the unstamped packages of cigarettes for the violation of Section 210.18(1), Florida Statutes; and Imposing an administrative fine in the amount of $1,000.00 for the violation of Section 210.15(1)(h), Florida Statutes. DONE AND ENTERED this 27th day of January, 2005, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 2005.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to the charges herein, respondent Strickland was an Industrial Arts teacher at Everitt Junior High School in Panama City, Florida. The Personnel Record filed at Everitt contains spaces on the back for "teaching experience and record." Written in pencil for the years 1965 through 1969 is "Macon Co. Bd. of Ed., Tuskeegee, Ala., Ass. Supt., Dir. of Psy." (Exhibit 1) Respondent denies that this was his handwriting. Mr. John T. May, the Principal of Everitt, called the Superintendent at Tuskeegee, a Mr. Byas, to verify this. He was told by Byas that respondent had been a counselor for the Title 1 program there, and had not been an assistant superintendent. A letter from Joe C. Wilson, who is listed as respondent's supervisor for those years on respondent's application for employment with the Bay County Public Schools, states that respondent was employed as a school psychologist. The letter further states: "His specific assignments were to coordinate the statewide testing program, to test students referred to E. M. R. classes, and handle psychological services in the Head Start Program. On occasions Mr. Strickland was assigned other duties, such as repre- senting the school in lieu of the Superin- tendent and the handling of some admini- strative details." (Exhibit H) Respondent submitted to Principal May five "temporary leave" forms requesting sick leave for the following dates: October 30, 1974; January 20, 1975; January 24, 1975; February 28, 1975; and April 11, 1975. Each of the leave forms were submitted from one to three days after the leave was taken. On two of these forms, respondent stated in the space provided for "explanation of request" that he was sick. (Exhibit 2) In reality, respondent was attending personal business in Mobile, Alabama on those dates. (Exhibit 3) In the manual for instructional personnel of Bay County Schools, "sick leave" is defined as "personal illness or disability of the teacher or illness or death of a member of the immediate family." Said manual also provides for personal leave without pay for absences for personal reason, the leave to be requested and approved prior to the absence. Also, it is provided that two days of sick leave may be used with pay for personal business. In such event, the teacher is to notify the principal at least five days in advance, except in cases of emergency. Respondent testified that he told Mr. May that he had personal business to attend to in Mobile, Alabama, and that May instructed him to arrange for a substitute and take sick leave. During a class period, respondent walked by the home economics room when the class was preparing food. The male students in the class were required to wear aprons and hairnets. Respondent was near the window and made remarks to Bobby Golding to the effect that he looked sweet and would make a nice housewife. This disrupted the class and embarrassed Mr. Golding. The home economics teacher, Ms. Collins, testified that other male students in her class had complained that respondent had teased them about wearing hairnets and/or aprons. At a time when a group of students were present, respondent confronted Ms. Collins in the school hallway. She did not wish to talk to him at that time and walked away from him. Respondent pursued her and continued to call her name in a demanding tone. Ms. Shipbaugh, a guidance counselor, also testified that respondent embarrassed her on several occasions in front of other faculty members by either degrading her qualifications as a counselor or by yelling at her. A teacher's aide at Everitt testified that she and respondent, along with about 25 other persons, were standing in line at a post office on a Saturday in January of 1976. According to her, respondent began making remarks about Mr. May being intoxicated at a school Christmas party. While others overheard his remarks, she did not recognize any students, parents or faculty members among those present. Respondent denied this incident at the post office. After several verbal and written announcements had been made to the faculty at Everitt, a faculty meeting was held on the morning of February 3, 1976. The Vice-Principal, Ms. McGill, testified that respondent was not present at this meeting, and she wrote a letter to him reprimanding him for this. (Exhibit L) A speaker at that meeting remembered seeing respondent in the hall after the meeting, but could not recall whether respondent was present during the meeting. No roll call was taken during the meeting. Respondent testified that he did attend this faculty meeting. Principal Mays received several complaints from students regarding remarks made to the students by respondent in his classroom. Two students testified that respondent had put his hand on their chest or his arm around their neck during class. Bobby Golding testified that respondent had made a remark to him in shop class concerning the hair on Golding's head being similar to the hair in respondent's pants. Golding said he knew that at least one other student heard this remark because they discussed it immediately thereafter. Four students who attended Everitt Junior High School testified that they had seen respondent smoke marijuana. Three of these four students took industrial arts from respondent. Kenneth Lynch saw respondent smoke marijuana at the Parker ball park and at the home of Vito Knowles. Bobby Golding was present and saw the same two incidents. Gary Guidas saw respondent smoke marijuana at the home of Vito Knowles and behind Guidas' house. The ball park and the Knowles' resident incidents occurred in the presence of other students, who were also smoking marijuana at the same time. During the gathering at the Knowles residence, "mushroom tea," an hallucinogenic substance, was also being consumed by the students. It is not clear from the testimony whether or not respondent was partaking of the "tea." One student testified that respondent supplied him with a marijuana cigarette on one occasion. None of the smoking was done on the school grounds, according to the students. Respondent denied having ever smoked marijuana as related by these students. It was his testimony that he never went to the Parker ball park or to Vito Knowles' home.
Recommendation Based upon the findings of fact and conclusions of law recited above, as well as the seriousness and number of the offenses of which respondent has been found guilty, it is recommended that respondent's Florida teaching certificate be revoked for a period of four (4) years, said period commencing on the date that the final order is rendered by the State Board of Education. Respectfully submitted and entered this 20th day of July, 1977, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J. David Holder, Esquire Barrett, Boyd and Holder Post Office Box 1501 Tallahassee, Florida 32302 Fred Turner, Esquire Post Office Box 1120 Lynn Haven, Florida 32444 Ms. Angela Peterson Professional Practices Council 319 West Madison Street- Room 1 Tallahassee, Florida 32304 Mr. Hugh Ingram, Administrator Professional Practices Council Room 3, 319 West Madison Street Tallahassee, Florida 32304
