The Issue The issues in this instance are presented through a Notice to Show Cause/Administrative Complaint, in which the Petitioner accuses Respondent, Mary Hordge, through actions of her agent, servant or employee, Mary Donnovan, of unlawfully selling alcoholic beverages in a manner not permitted by the license, namely the sale for consumption on-premises under the package sales license, contrary to Section 562.12, Florida Statutes.
Findings Of Fact Mary E. Hordge, referred to in the Administrative Complaint is the holder of License No. 26-2310, Series No. 2-APS. That type license allows the sale of beer and wine as package sales for consumption off-premises. On- premises consumption is not authorized by that license. An inspection of the licensed premises was made on June 3, 1983. The licensed premises is in Jacksonville, Florida. The licensed premises was open for business on that date. When the inspector entered, Johnny L. Holmes, son of licensee and business manager of the licensed premises, was seated at a counter and an opened can of Coors beer was on the counter in front of him. Another employee of the licensed premises at that time was one Mary Darwell, who is a cook in the licensed premises, and whose other responsibilities include clearing of tables in the bar area. No other conduct was observed related to alcoholic beverages.
Findings Of Fact At all times relevant to these proceedings, the Respondent, Rex Liquor Stores, Inc., was the holder of beverage license No. 62-535, Series 3-PS. The license is issued to the licensed premises located at 925 62nd Avenue, St. Petersburg, Florida, and is known as Rex Liquor Store No. 1. The officers and directors of the Respondent corporation in June 1983 were: William J. Colonnell President Robert V. Colonnell Vice-President William J. Colonnell, Jr. Secretary-Treasurer These three individuals also were the stockholders in the corporation, with William J. Colonnell as the majority stockholder. On June 15, 1983, Detective John Brady, of the Pinellas County Sheriff's Department, made a controlled buy of cocaine from William J. Colonnell, Jr. This controlled buy was made through a confidential informant and took place at Mr. Colonnell's house. This buy was a sample for a larger buy of one pound of cocaine on June 16, 1983. The transfer of the one pound of cocaine was to take place on June 16, 1983, at Mr. Colonnell's home. However, at approximately 5:20 p.m. on June 16, William J. Colonnell, Jr., called the confidential informant and said he wanted the "buy" to take place at Rex Liquors located at 925 62nd Avenue in St. Petersburg. Mr. Colonnell also told the confidential informant that "Carlos" was at the liquor store and was getting nervous. Carlos is the street name of Carl Mobley, a well-known drug trafficker in the St. Petersburg area. William J. Colonnell, Jr. was acting as a middle man for Mobley in the drug transaction. The confidential informant and Detective Brady went to the licensed premises. When they arrived at Rex Liquors No. 1, they walked in and saw William Colonnell, Jr. walk out of the storage area and motion them to the rear of the store. Colonnell took them into the store office where Carl Mobley was hiding in the bathroom. Colonnell went over to the desk and removed a packet wrapped in newspaper. He opened the packet and removed a large ziplock plastic bag containing one pound of cocaine. Brady then performed a test to determine if the white powder was, in fact, cocaine. The test showed positive for cocaine and Brady then walked out, got the money and came back in. A young lady named Kristine Lindh was also present in the office and began counting the money. The agreed purchase price was $33,600.00 and this was in twenty dollar bills. After Brady returned to the office with the money, Colonnell called him over to a filing cabinet in the office and showed him how he could see the cops coming if they came there. He then stated that was why he did his drug deals there, because he could see the cops coming and get rid of the contraband. For this particular transaction, Detective Brady had been body-bugged; and when the transaction was completed, backup officers were to come in and make the arrest. The body bug was not working; and while Brady sat and watched Ms. Lindh count the money, there was suddenly a crash. Someone yelled "sheriff's department." Colonnell yelled toward the bathroom "Carlos, it's the cops." A black male ran out of the bathroom, and Colonnell grabbed a 357 magnum pistol. Colonnell had previously locked the office door, and the officers were attempting to break down the door. Colonnell pointed the pistol at the door, and Brady jumped him. Colonnell fired two shots at Brady before Brady was able to disarm him. During the struggle, Colonnell was fatally wounded. No other shareholders or stockholders were aware of this drug transaction. William J. Colonnell, Jr. had a clean record and had had no prior criminal charges. He had managed the licensed premises for 20 years. Cocaine is a controlled substance under Chapter 893, Florida Statutes.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division of Alcoholic Beverages and Tobacco enter a Final Order finding the Respondent guilty of the violations charged in Counts 1, 2, 3, 4 and 5 of the Notice to Show Cause and revoking beverage license No. 62- 535. DONE and ENTERED this 23rd day of March, 1984, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1984. COPIES FURNISHED: James N. Watson, Jr., Esq. Department of Business Regulation 725 Bronough Street Tallahassee, FL 32301 William J. Colonnell 2401 Evinadelman St. Petersburg, FL 33706 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, FL 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32301
Findings Of Fact Forrest and Charles Joseph, trading as C. Joseph Grocery, hold alcoholic beverage license No. 26-28, Series 2- APS. The licensed premises is located at 3323 Evergreen Avenue, Jacksonville, Florida. The charges herein arose from a public assistance fraud investigation conducted by the State Attorney, Fourth Judicial Circuit. "Confidential informants" were utilized on February 17 and 26, 1981, to exchange United States Department of Agriculture food stamps for cash with the owners or employees of C. Joseph Grocery. The transactions took place on the licensed premises. On February 17, 1981, a confidential informant, Dennis Rawlins, entered the licensed premises with 3265 in food stamps which he turned over to Respondents' employee, Jordan. Upon receiving the food stamps, Jordan approached Charles Joseph, Jr., who was then supervising the store. Joseph gave Jordan $150 for the stamps. Jordan kept $50 for himself and gave the remaining $100 to Rawlins in exchange for the food-stamps. On February 26, 1981, a confidential informant, Ronald Wampler, entered the licensed premises with $300 in food stamps which he traded for $100 cash. Wampler received the cash in exchange for the food stamps from a person he knew from previous visits to the store as Charles Joseph, Sr. Wampler represented the stamps as stolen property to this buyer.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondents guilty of allegations contained in Counts One and Two of the Administrative Complaint and suspend alcoholic beverage license No. 26-28, Series 2-APS, for a period of ninety (90) days. DONE AND ENTERED this 7th day of April, 1982, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 1982. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Lacy Mahon, Jr., Esquire 350 East Adams Street Jacksonville, Florida 32202 Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issue for determination is whether Respondent's alcoholic beverage license should be disciplined for violation of Chapter 561, Florida Statutes. Resolution of this issue requires a determination of whether Respondent correctly reported and remitted alcoholic beverage surcharges.
Findings Of Fact Respondent is Betty Schmidt. At all times pertinent to these proceedings, she held alcoholic beverage license no. 74-00275, Series 2-COP, for a licensed premises located at 1161 North U.S. 1, Ormond Beach, Florida. Petitioner's auditor, Muriel Johnson, performs audits on vendors monthly surcharge reports in order to confirm the accuracy of those reports and ensure compliance with statutory and administrative rule requirements. The audit in the instant case covered the reporting period of Respondent from September 1, 1994 through August 31, 1997. Alcoholic beverage licensees are afforded an opportunity to elect to report and pay the surcharge by either the purchase method or the sales method. Under the purchase method, a licensee pays the surcharge on alcoholic beverages purchased from authorized distributors. Under the sales method, licensees pay the surcharge on alcoholic beverages sold for consumption on the premises. Respondent elected to report via the sales method. A licensee's reporting under the sales method is audited by the Sales Depletion Method. Under this methodology, a beginning inventory is ascertained. Second, purchases made by the licensee for the audit period are computed. Third, an ending inventory for the audit period is ascertained. Fourth, Gross Gallonage Available For Sale is computed by adding the beginning inventory to the purchases made during the audit period and then subtracting the ending inventory. Fifth, the Net Gallonage Available For Sale during the audit period is calculated by subtracting from the Gross Gallonage an allowance for spillage and a cooking adjustment. The end result is termed the Adjusted Sales Gallonage from which amount the amount of surcharge owed for the audit period is determined. Because Respondent did not keep inventory figures, and based upon her assertion that her inventory was generally the same, Respondent and the auditor agreed upon zero as the starting inventory. Second, purchases of alcoholic beverages by Respondent during the audit period were computed based upon purchase figures provided by Respondent and verified independently through records obtained from distributors. Third, the ending inventory was agreed to be zero. Fourth, The gross gallonage available for sale was determined by adding the beginning inventory (zero) to the purchases made during the audit period and subtracting the ending inventory (also zero). Fifth, adjustments to net gallonage for sale included allowances for spillage and package sales. Notably, the audit revealed that Respondent was treating liquor mixers as wine coolers and paying a lower tax on that basis when in fact wine coolers are taxed at the rate of one ounce of liquor per container at a higher rate. Adjustments for this practice were also made. Finally, the total surcharge due for the audit period was calculated and compared to the amount already reported in order to determine the amount of under- reported or over-reported tax. Respondent sets up various disbursement stations for beer on her property during “bike week” in Daytona Beach. With only one cash register, the sales at the various stations are maintained by hand on clipboards. Additional staff is employed at this time and Respondent is not personally present at each station to monitor sales reporting. Frequent sources of alcoholic beverage sales that are not captured by a license’s cash register include theft, breakage, leakage, spillage, overpouring of drinks, and free drinks. The amounts of alcoholic beverage that are lost to a cash register in these ways are captured by Petitioner’s sales audit method. While Respondent keeps good records, no cash register method can ever capture all of the alcoholic beverages available for consumption on premises and consequently there will always be some discrepancy as the result of a sales method audit. As established by results of Petitioner's audit, Respondent underpaid surcharges for the audit period in the amount of $890. Additionally, it is established that Respondent owes $557.66 in penalties and $193.33 in interest on the payment deficiency.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered requiring payment by Respondent in the amount of $1641.10, the amount of total tax and liabilities claimed by Petitioner to be due. DONE AND ENTERED this 23rd day of November, 1998, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 1998. COPIES FURNISHED: Elsa Lopez Whitehurst, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Betty Schmidt Smiley's Tap 1161 North U.S. 1 Ormond Beach, Florida 32174 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times relevant hereto, respondent, Jose Luis Rodriguez, operated a small grocery store known as Comodoro Grocery at 1412 Southwest Third Street, Miami, Florida. The establishment has been issued license number 23-01096-2APS by petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division) . The license authorizes the package sale of beer and wine. Around 6:00 p.m. on December 30, 1987 Division investigators Santana and Garcia visited respondent's licensed premises to ascertain whether narcotics were being sold. The visit was prompted by a complaint of unknown origin. 1/ After observing no sales on the premises, the two investigators each purchased a beer and left the establishment. They returned a few minutes later. While purchasing a second beer, they observed a young black male whom they believed to be a minor take a twelve ounce can of Budweiser beer out of the store refrigerator and carry it to the check-out counter. Respondent was working the cash register but did not ask the customer for an identification card. The customer handed respondent a one dollar bill, received some small change and left the premises with the beer in a paper bag. Investigator Santana followed the customer outside the store, stopped him, requested some form of identification and then confiscated the beer. In response to Santana's request, the customer produced a "restricted driver's license." According to Santana, the license carried the name "Julio Vargas" and reflected a birth date showing that Vargas was a minor. However, this testimony is based upon hearsay declarations and does not supplement or explain other competent evidence of record. Thereafter, Santana and Garcia arrested both the customer and respondent. The customer was cited for being a minor in possession of an alcoholic beverage while respondent was charged with unlawfully selling an alcoholic beverage to a minor. The criminal charge against respondent was later dismissed in county court while the outcome of the case against the customer is not of record. The customer (a/k/a Vargas) was not present at final hearing. Although the arresting officers contended that the customer was the same person whose name appeared on the license, and that he was a minor at the time he was arrested, there is no independent, competent proof of the customer's identity and actual age, such as the testimony of the customer or a copy of the driver's license, birth certificate or other identification. Respondent conceded that the customer in question carried a beer out of the store. However, he contended the customer was with his uncle who had already paid for the beer, that no money was taken from the customer and the nephew was simply retrieving already purchased merchandise. To the extent this version of the events conflicts with the eyewitness testimony of the investigators, it is rejected as not being credible. According to respondent's grandson, who was also working behind the counter that day, the customer paid for the beer but with money furnished by his uncle. However, no independent proof of this assertion was submitted. Respondent has operated his store for some fourteen years. There is no evidence of any prior sales of alcoholic beverages to minors or disciplinary action taken against his license for any violation of state law or agency rules. Respondent intended to present the customer as a witness at final hearing. However, when respondent arrived at the witness' residence on May 10, 1988 to transport him to the hearing, the customer was not there. The witness was not served with a subpoena by either party.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing the charge against respondent. DONE AND ORDERED this 3rd day of June, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 3rd day of June, 1987
The Issue At issue in this proceeding is whether respondent committed the offenses set forth in the administrative action, as amended, and, if so, what disciplinary action should be imposed.
Findings Of Fact At all times material herein, respondent, Qasem Shahinda d/b/a Ismael and Son Supermarket, held alcoholic beverage license number 23-10720, series 2- APS, for the premises located at 14528 Lincoln Boulevard, Miami, Florida. At all times material hereto, respondent was authorized to receive U.S.D.A. food stamps in exchange for food items, and had received training prior to such authorization from the United States Department of Agriculture as to, inter alia, items of merchandise which could or could not be exchanged for food stamps. In December 1992, U.S.D.A. Investigator William Bethel (Bethel) and U.S.D.A. Investigative Aide Mary Pierce (Pierce) commenced an investigation of the licensed premises to ascertain whether nor not persons associated with the premises were complying with State and Federal law regarding the acceptance of U.S.D.A. food stamps. In each instance, Bethel accompanied Pierce to the premises and provided her with the U.S.D.A. food stamps used in the investigation. On December 10, 1992, Pierce entered the license premises with $30.00 in U.S.D.A. food stamps. At or about 1:20 p.m. that date, a female clerk on the premises accepted food stamps in exchange for merchandise which, in addition to eligible items, included the following ineligible items: a six-pack of Old Milwaukee Beer, one pack of Winston cigarettes, one pack of Newport cigarettes, and one Massengill disposable douche. On April 14, 1993, Pierce entered the licensed premises with $65.00 in U.S.D.A. food stamps. At or about 12:30 p.m., another female clerk accepted $32.79 worth of food stamps in exchange for merchandise which, in addition to eligible items, included the following ineligible items: a six-pack of Old Milwaukee Beer and one pack of Newport cigarettes. 1/ On April 14, 1993, Investigator Bethel entered the licensed premises with $45.00 in U.S.D.A. food stamps in furtherance of the above described investigation. At or about 12:35 p.m., the same female clerk accepted $38.97 worth of food stamps in exchange for merchandise which, in addition to eligible items, included the following ineligible items: a six-pack of Old Milwaukee Beer, one box of Cheer detergent, and one box of Clorox dry bleach. 2/ On April 28, 1993, Pierce entered the licensed premises with $55.00 in U.S.D.A. food stamps in furtherance of the above described investigation. At or about 11:40 a.m., the same female clerk she had encountered on April 14, 1993, accepted $53.85 worth of food stamps in exchange for merchandise which, in addition to eligible items, included the following ineligible items: a six-pack of Old Milwaukee Beer, one pack of Winston cigarettes, one pack of Newport cigarettes, one roll of Reynolds Foil, and one box of Hefty kitchen bags. 3/ Pierce returned to the premises on April 28, 1993, with $65.00 in U.S.D.A. food stamps. At or about 11:55 a.m., Pierce met with the same female clerk and sold her the $65.00 in U.S.D.A. food stamps for $25.00 in United States currency. 4/ On July 19, 1993, Pierce entered the licensed premises with $140 in U.S.D.A. food stamps in furtherance of the above described investigation. At or about 12:45 p.m., a male clerk accepted food stamps in exchange for merchandise which, in addition to eligible items, included an ineligible pack of Winston cigarettes. Moreover, the same male clerk purchased from Pierce $130.00 in U.S.D.A. food stamps (two full $65.00 books) for $70.00 in United States currency.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered finding respondent guilty of the aforesaid violations and assessing a $2,000.00 civil penalty. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 8th day of March 1995. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of March 1995.
The Issue Whether respondent's beverage license should be suspended or revoked, or civil penalty assessed, for alleged violation of Section 562.12, Florida Statutes, pursuant to Section 561.29, Florida Statutes, as set forth in the Notice to Show Cause issued by Petitioner.
Findings Of Fact Respondent Earlene Chandler of Quincy, Florida, is the owner of Chandler's Grocery located in Gadsden County, which holds a beverage license for the sale of packaged beer and wine under Class 2-APS, issued by the Petitioner (Petitioner's Exhibit 1). On March 11, 1977, Frederick Miller, a beverage officer employed by Petitioner, and a paid informer of Petitioner, Clinton Harrison, A/K/A Guy Williams, drove to Respondent's place of business and parked approximately 300 to 400 yards from the licensed premises. Miller searched Harrison and determined that he did not then possess any alcoholic beverages. While Miller stood by the side of the road, Harrison drove the car to Respondent's grocery store and entered the same. He returned to where Miller stood in approximately, 10-15 minutes and turned over to Miller a partially-filled Coca Cola bottle containing a mixture of vodka and grapefruit juice. Miller had watched Harrison enter and leave from the front door of the store; however, he could not recall if anyone entered the store while Harrison was there. Miller was able to determine that vodka was in the bottle by it's smell. He and Harrison placed their initials on a label which was then affixed to the bottle, and Miller then placed the bottle in the evidence room vault at his agency in Tallahassee until the date of hearing. Harrison told Miller that Willy Chandler had sold him a drink of vodka for one dollar (testimony of Miller, Petitioner's Exhibit 2). On March 21, 1977, Miller obtained search warrants to search the residence of Respondent, which is located behind the grocery store. On March 27, 1977, the warrant was served on the Respondent and a search of the residence revealed the presence of two sealed quart bottles and one unsealed, partially filled quart bottle labeled Taaka Vodka in a kitchen cabinet. These bottles were tagged and initialed by Miller and placed in his agency's evidence vault until the date of hearing. At the time the search was made, the Respondent stated that the vodka belonged to her husband (testimony of Miller, Petitioner's (composite Exhibit 3). Although the informer Harrison testified at the hearing, his version of what transpired at Chandler's Grocery on March 11th, 1977, is in conflict with the testimony of Respondent, her husband Willie Chandler, and that of Phillip N. West, a customer in the store at the time in question. Harrison testified that he asked Willie Chandler several times for a "dollar shot", but that Chandler refused, stating that he either did not have anything or did not sell intoxicating beverages Harrison further testified that finally Chandler went outside the store and returned with a glass containing some vodka which he, Harrison, put in a Coke bottle and mixed with fruit juice after paying one dollar for the vodka and twenty-five cents for the juice. Harrison conceded that he had had a "beer or two" before he entered the grocery. He also testified that only Chandler, the Respondents and a child were present in the store at the time. Harrison's credibility was attacked by the Respondent at the hearing by a showing that he has a bad reputation for truth and veracity in the community. (Testimony of Harrison, W. Chandler, Simmons). The evidence establishes that the following took place when Harrison entered Chandler's Grocery Harrison asked Willie Chandler for a half pint of whiskey and Chandler told him that he did not sell whiskey. There were a number of children and several adults in the store. Harrison, who was somewhat "unstable" and gave the appearance of being under the influence of alcohol, was annoying the children in the store and issuing mild threats against them. He continued to ask Chandler for whiskey and finally the latter told him that he would give him some. Chandler and Harrison then left the premises and, while Harrison stood at a gate in full view of the occupants of the store who observed him continuously, Chandler went to his residence and brought back some vodka in a glass which he handed to Harrison at the gate Harrison reentered the store, purchased a Coca Cola bottle for five cents and some grapefruit juice for twenty-five cents, which he mixed in the bottle and, after taking a drink of same, left the premises. (Testimony of W. Chandler, Respondent, West, Petitioner's Exhibit 4).
Recommendation That the charge against Respondent Earlene Chandler be dismissed. DONE and ENTERED this 16th day of December, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Francis Bayley, Esquire Department of Business Regulation The Johns Building Tallahassee, Florida 32304 Michael L. Allen, Esquire and Michael Edwards, Esquire 112 East Washington Street Quincy, Florida 32351
The Issue Whether respondent had the substantive, statutory authority to adopt Rule 33-3.06(5)(b), Florida Administrative Code, or IOP 81-6, and whether, in any event, IOP 81-6 was promulgated in accordance with the procedures prescribed by statute?
Findings Of Fact At the final hearing, the parties stipulated that the petitioners have standing to challenge Rule 33-3.06(5)(b) Florida Administrative Code and IOP 81- 6; that currency belonging to both petitioners had in fact been converted to coupons pursuant to the "rules" under challenge; and that torn and loose coupons will not be redeemed. The parties also stipulated to the following allegations of the petition: Petitioners' [sic] are incarcerated citizens of the State [o]f Florida and their substantial interest is substantially "affected" by policies and rules of the Respondent depriving them of monies systematically through coupon instead of cash to the disadvantage of petitioners. Respondent ha[s] promulgated a rule in Florida Administrative Code (FAC) which allow[s] superintendents' [sic] to convert cash, postal money orders and certified checks into coupons in the place of United States currency. The rule is attached hereto as exhibit "A", Chapter 33-3.06(5) (b), FAC, incorporated by reference. Respondent ha[s] also issued a policy statement which states: Canteen coupon books shall be the approved medium of exchange for the inmates at Union Correctional Institution. Currency, coins or other negotiable instruments in the possession of an inmate are con- traband. Section 81-6.3(A) Union Correctional Institution Operating Procedure #81-6 (IOP)-Issued 2/16/62; revised 10/2/81 SEE Exhibit "B" attached hereto. In another policy statement, Respondent require[s] the confiscation of cash to be used instead (coup[o]ns) cash. [sic] Regi[o]nal Operating Procedure #6 (ROP), relating to money, the conversion of United States currency and postal money orders into coupons in lieu there for. (5). . . Section 120.52(14), Fla. Stat. (1981). Neither of the policy statements ha[s] been formally adopted as required. Id. 120.54(4) But see, 33-1.07(4), FAC. The rule provision incorporated in the petition by reference, Rule 33- 3.06(5)(b), Florida Administrative Code, states: In institutions using canteen coupons instead of cash money, possession limits will remain the same. Any and all cash found in the possession of an inmate will be considered contraband and deposited in the Inmate Welfare Trust Fund. Inmate canteen coupons are contraband in the possession of anyone other than the inmate who purchased them. They cannot be traded among inmates, nor can an inmate spend coupons from another inmate's canteen hook. All coupons must remain in the coupon book until exchanged for items from the canteen. The institutional operating procedure challenged by petitioners and attached to the petition as Exhibit B, provides: Union Correctional Institution Operating Procedures No. 81-6 Inmate Canteen Coupon Books Date Issued: 2-16-62 Date Revised: 10-2-81 81-6.1 Authority Department of Corrections, Policy and Pro- cedure Directive No. 2.02.09 Department of Corrections, Policy and Procedure Directive No. 2.02.23 Regional Operating Procedure No. 81-6.2 Purpose A. The purpose of this operating procedure is: To establish the approved medium of exchange for inmates assigned to Union Correctional Institution; To establish procedures for obtaining coupon books for use in the Canteen System; To place responsibility for distributing and accounting for Canteen coupons; To place limitation upon inmates use of coupon books; To establish procedures for redemption of coupon books; and To identify disciplinary action relative to misuse of coupon books. 81-6Y3 Policy Canteen coupon books shall be the approved medium of exchange for inmates at Union Correctional Institution. Currency, coins or other negotiable instruments in the possession of an inmate are contraband. All currency, coins or negotiable instruments shall be removed from an inmate's possession upon arrival at Union Correctional Institution and transmitted to the Accounting Department for credit to his inmate trust account. A receipt will be given to the inmate upon posting the transaction. Inmates may request that up to $20.00 be drawn from their trust account each week and issued to them in the form of coupon books. Coupons will be distributed to inmates by the custodial staff at designated times and places each week. Inmates must acknowledge receipt of coupon books given to them. Inmates not in their assigned areas when coupon books are distributed will be credited for the amount drawn upon return of the books to the Accounting Department. The Business Office has the responsibility for design and composition of coupon books. Changes will be made and existing books re- deemed without notice. Inmates must sign each coupon book dis- tributed to them. Coupon books and the denominated coupons within them are numbered. Possession of coupons belonging to another inmate is possession of contraband. Coupons are redeemable for merchandise in the Canteen System; however, loose coupons will not be accepted at the sales windows. Contraband coupons will be confiscated and the proceeds will be placed in the Inmate Welfare Fund. Confiscations will be receipted to the inmate by institutional personnel in accordance with Union Correctional Institution Policy Memorandum No. 46. 81-6.4 Procedure Requesting Coupon Books Inmates who have sufficient funds on deposit in their trust accounts may request coupon books by completing Form UCI-133 in their housing area. The amount requested must be in even dollars, not to exceed $20.00. Completed forms must be turned in at designated locations prior to 8:00 A.M. on Wednesday. Only one form per week will be . Off honored. Coupon Distribution Coupons are distributed by housing area. A listing of inmates in each housing area due to receive coupons is produced weekly and given to the cashier, who gathers the required quantity of coupon books for each area. Custodial personnel verify the coupons pulled for each housing area and acknowledge receipt of the coupons from the Cashier. Coupon books and withdrawal sheets for each housing area are distributed to housing officers, who locate the inmates and issue the books. Inmates are required to sign the sheet opposite their name, number and book numbers assigned to them, to acknowledge receipt of the books. Inmates are also re- quired to sign their book(s) in the presence of the officer. Signed withdrawal sheets and any returned coupon books which were unissued are to be returned to the Control Room Sergeant, who is to secure them and return them to the Cashier on the following work day. Coupon Redemption Coupons are to be used to purchase items in the Canteens. All Coupons are to remain intact in the book. Loose coupons will not be accepted for redemption. Coupons will be taken from an inmate's possession when he is being trans- ferred; however, the value of intact coupons will be receipted for by the officer. Proceeds. will be credited to the inmate's trust account, and the account balance will be transferred to the new location. When new coupons are issued, inmate in possession of the old style coupons will receive full credit and a receipt for them provided they are intact in the original book bearing the inmate's name and number. Loose coupons will not be accepted for redemption. Possession Limit 1. Any inmate may retain up to $25.00 worth of his own coupons in his possession. Any excess is contraband and will be deposited in the Inmate Welfare Fund. E. Institutional Rule Violations Non-adherence to this Institution Operating Procedure may result in the following rule violations: 3-8 Possession of negotiables- another inmate's coupon book, cash or unauthorized negotiables; 9-5 Theft of coupons from another inmate, officer, canteen outlet or depository; 9-4 Attempt, attempting to conspire or 05piracycounterfeitinG coupon books; 3-12 Possession of miscellaneous contraband-more than $25.00 personal coupon limit. Neither party adduced any testimony or other evidence at the final hearing.
The Issue The issues are whether Respondent has incurred and failed to pay Petitioner a surcharge of $12,380.59 plus a penalty of $7553.07, in violation of Section 561.501, Florida Statutes, and whether Respondent has failed to maintain the records required by Section 561.501(2), Florida Statutes, and Rule 61A-4.063(8), Florida Administrative Code.
Findings Of Fact Respondent holds license number 39-00410 4COP. Respondent owns and operates the Station Bar located at 1947 Main Street in Tampa. Respondent sells alcoholic beverages, but is not a “pouring bar.” In other words, Respondent’s employees sell the alcoholic beverages, but never open and pour the alcoholic beverage into a glass. In the typical transaction, Respondent sells a bottle or six-pack of alcoholic beverages to a patron, who may also purchase from Respondent a nonalcoholic beverage to mix with his alcoholic beverage, as well as cups and stirrers. Sometimes, the patrons remain in the bar after the purchase. Respondent’s bar contains a dance floor, pool tables, video games, and a juke box for the entertainment of patrons choosing to remain and consume their alcoholic beverages in the bar. Respondent’s accounting system is fairly simple. Placing labels on each bottle, Respondent’s employees remove the label each time that a bottle is sold. If a patron chooses to consume his drink on the premises, the bartender is supposed to record this fact on a piece of paper. Either the bartender or Respondent’s manager records sales information on a daily sheet; Respondent’s manager transfers the information to weekly and monthly sheets. Respondent eventually produced for Petitioner's auditor some daily sheets, but they were not sufficiently detailed to document Respondent’s position concerning the sales of alcoholic beverages for off-premises consumption. Respondent also uses a two-tape cash register, but it shows only the sale amount and is not computerized. Neither tape reveals individual sales or whether the patron purchased his alcoholic beverage for consumption on premises. During the audit, Respondent took the position that about 60 percent of its sales of all alcoholic beverages were for off-premises consumption. However, despite repeated requests from Petitioner’s auditor, Respondent never produced a any detailed documentation of individual transactions. Instead, Respondent produced only highly summarized information supporting its position that few, if any, sales were for on- premises consumption. Petitioner’s auditor agreed to allow Respondent to keep detailed records of sales for on- and off-premises consumption for a period of time and then extrapolate the information back to the audit period. However, Respondent did not undertake such a process. Knowing that Respondent made some sales for consumption off premises, Petitioner’s auditor allocated 10 percent of all sales of beer and liquor for consumption off premises. Applying this 10 percent factor, Petitioner’s audit correctly determined that, from September 30, 1996, through December 31, 1998, Respondent incurred a surcharge liability of $14,114.90, as well as a penalty of $5,818.76, for a total liability of $19,933.66, taxes and penalty.
Recommendation It is RECOMMENDED that the Division of Alcoholic Beverages and Tobacco enter a final order finding Respondent liable for $12,380.59 in surcharge and $6190.29 in penalty, for a total liability of $18,570.88. DONE AND ENTERED this 13th day of June, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 2001. COPIES FURNISHED: Richard Turner, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street, Northwood Centre Tallahassee, Florida 32399-2202 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Northwood Centre Tallahassee, Florida 32399-2202 Michael Martinez Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Thomas A. Smith 800 West Platt, Suite 3 Tampa, Florida 33606 Captain John L. Blair 1313 Tampa Street Park Trammel Building, Suite 702 Tampa, Florida 33602
