Findings Of Fact At all times pertinent to these proceedings, Respondent, Daughtin J. Rhue, operated a business, J's Cut Rate Variety Center, in Fort Lauderdale, Florida, under a Series 2-APS beverage license, No. 16-731, issued by Petitioner. On May 26, 1983, Beverage Officer D'Ambrosia entered Respondent's place of business on a matter unrelated to the offenses charged here (nonpayment of Florida sales tax). While there, he noticed several packs of cigarettes on the shelf behind the counter which appeared to be nontaxed cigarettes. These cigarettes, which he knew to be untaxed because of the red meter stamp imprinted on the bottom of the packs (tax-paid cigarettes have a black metered stamp on the bottom of the pack), were mixed in with the tax-paid cigarettes offered for sale by Respondent. Mr. D'Ambrosia said nothing about this to Respondent at that time, but then conducted a search elsewhere in the store for other nontaxed cigarettes and could find none. When he came back to the counter again, he found that those packs which bore the red, nontaxed stamp had been reversed on the shelf so that the stamps were not facing outward as they had been previously. Along with Respondent, he examined all the cigarettes on the shelves and found 12 packs that bore the red, nontaxed stamp. There were 7 packs of Lark Lights 100s, 3 packs of Kool Super Lights, 1 pack of Benson & Hedges Menthol and 1 pack of Marlboro. The stamp these packs bore is issued only to the Indians, and cigarettes so marked and stamped are not for resale to non-Indian consumers. No other nontaxed cigarettes were found at that time either on the shelves or elsewhere in the store. However, review of the file on Respondent's license indicates that in April, 1979, Respondent was previously found to have 254 packs of untaxed cigarettes in his store for resale. Action was taken at that time pursuant to stipulation between the parties. Respondent admits the nontaxed cigarettes were on his shelves on May 26, 1983, but denies having known it prior to it being pointed out to him by the beverage agent. He contends that he orders all cigarettes for the store from only two vendors, Pueblo and Wholesale Plus, Inc., and that his employee picks them up from the wholesaler and stocks the shelves. Further, he denies purchasing or stocking the brands untaxed on his shelves. He also denies that the untaxed packs were touched during the visit by Mr. D'Ambrosia, indicating that they were not turned around as alleged. Notwithstanding Respondent's protestations, the untaxed cigarettes were, by his own admission, offered for sale on his shelves The dispute as to whether he knew the untaxed cigarettes were there is resolved against him. He states he worked there every day. It is unlikely he was not aware of their presence.
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondent's alcoholic beverage license, Series 2-APS, No. 16-731, be suspended for thirty (30) days and that Respondent pay an administrative fine of $500. RECOMMENDED this 8th day of November, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1983. COPIES FURNISHED: John A. Boggs, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Daughtin J. Rhue 1415 N.W. Fifth Street Fort Lauderdale, Florida Mr. Gary Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen Director, Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Respondent Yazgi has an ownership interest in respondent Stop N Shop and is the only individual named on respondent Stop N Shop's license. Respondent Yazgi has a one-third interest in a different store at a different location in Jacksonville, which is also called Stop N Shop. Sometime before noon on October 15, 1976, Mr. Yazgi took one carton of Winston menthol cigarettes and one carton of Silver Thin cigarettes from this second store and transferred them to respondent Stop N Shop where they were offered for resale and where petitioner's agents discovered them, except for one package which was missing. The store from which respondent took the cigarettes is not a licensed cigarette wholesaler.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner impose a civil penalty against respondent in the amount of one hundred dollars ($100.00) DONE and ENTERED this 6th day of December, 1977, 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. Tom Yazgi c/o Stop N Shop 2039 West 12th Street Jacksonville, Florida Mr. J. M. Ogonowski District 3 Department of Business Regulation 1934 Beachway Road Jacksonville, Florida 32207 Mr. Francis Bayley, Esquire Department of Business Regulation Legal Section Johns Building 725 South Bronough Street Tallahassee, Florida 32304
Findings Of Fact At all times relevant hereto, respondent, Willie Coachman, was a licensed beer vendor having been issued license number 39-02165 by petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division). Respondent uses his license at a business known as Willie's Fina Station located at 1312 East Columbus Drive, Tampa, Florida. The license is a Series 1-APS which authorizes Coachman to sell beer by package only for consumption off premises. On August 17, 1988 a Division investigator, Keith B. Hamilton, conducted an investigation of Coachman's licensed premises to determine if respondent was selling beer. He did so since Coachman's license was then under a suspension. After finding the beer coolers sealed with tape, Hamilton left the premises and stood outside the front door. He then observed a black male enter the premises carrying two boxes filled with cartons of cigarettes. The black male gave them to the store clerk, and Hamilton observed the clerk pay the male $80 from the cash register for the cigarettes. The cigarettes were then placed on the floor near Coachman's office. The male was not driving a vendor's truck nor was he dressed in a vendor's uniform. Hamilton telephoned another Division investigator, William P. Fisher, who came to the premises some ninety minutes later. The two entered Coachman's store, identified themselves to a clerk and inspected the stock room. According to Hamilton, Coachman is authorized to buy cigarettes from two area cigarette wholesale distributors, Costco Wholesale Corporation (Costco) and Eli Witt Corporation (Eli Witt). Each wholesaler has a distinctive stamp on its cigarette packages so that an investigator can easily determine from which wholesaler a vendor obtained cigarettes. Upon examining the cigarettes in Coachman's stock room, including the two boxes just sold to the cashier, Hamilton and Fisher noted that approximately 3,137 packs did not have a Costco or Eli Witt stamp. After the clerk could not produce invoices to verify that the cigarettes were purchased from a licensed wholesale dealer, the 3,137 packs were seized and taken to an evidence vault. At that time, the clerk acknowledged that Coachman had authorized her to make cigarette purchases from patrons. Coachman arrived at the premises as the investigators were leaving. He objected to the seizure saying that some of the cigarettes being taken were "good." Coachman was told the cigarettes would be returned if he could produce invoices establishing that they were validly purchased. During the course of the inspection on August 17, investigator Fisher observed nine bottles of Chivas Regal Scotch on a desk in Coachman's office. The bottles were unopened. According to Hamilton, it is unlawful for a beer vendor to have such alcoholic beverages on the premises even for personal consumption. Thus, even though Coachman maintained, without contradiction, that the scotch was for his own use, it was improper for him to store the same on his premises. After the cigarettes were placed in the evidence vault, Coachman produced certain invoices for the Division and also had several wholesalers telephone the Division to confirm various sales to Coachman. This resulted in 540 packs being returned to Coachman. Some 2,502 packs still remain in the Division's custody. At hearing, Coachman indicated that he normally buys some $30,000 to $40,000 of cigarettes monthly from various wholesalers. Also, he offered into evidence various receipts for purchases made in July and August 1988 and documentation verifying that a large quantity of cigarettes was obtained through transfers (exchanges) of cigarettes with other vendors. This latter situation occurs whenever one vendor has a slow-moving brand and exchanges them for a different brand with another vendor. However, each transfer must be documented with paperwork. The Division did not inventory the seized cigarettes by brand or dealer. Its evidence vault receipt, which has been received in evidence as petitioner's exhibit 3, reflected only that 2502 packs of cigarettes were taken. However, by credible testimony it was established that none of the confiscated cigarettes had indicia to show that they were purchased from Costco or Eli Witt. This was not contradicted. On the evening of August 31, 1988 investigator Turner and two informants carried fifteen cases of beer to another licensed premises operated by Coachman. The beer was transported in an unmarked, private vehicle. They offered to sell the beer to Coachman for $4.00 per case but then agreed to sell it for $3.00 per case, which is substantially below the fair and wholesale market value. The sale took place at the house of Coachman's children but Turner was paid with monies from respondent's cash register. Prior to the sale, Division personnel placed special markings on the bottom of the cans for identification purposes so that they could be later identified. On September 6, 1988 investigator Freese went inside respondent's premises and purchased a six pack of Busch beer for $2.69. The package was one of those previously sold to Coachman on August 31. Coachman denied reselling the Busch beer and contended it was purchased for personal consumption and use by his children. However, this testimony is not accepted as being credible. Also, he contended that all cigarettes were legally purchased from wholesalers or by exchange with other dealers and that he had appropriate documentation on hand at all times. However, such documentation was not on hand on the night the cigarettes were taken, and Coachman did not show that any of the cigarettes referred to on the documents supplied at hearing were the same that were seized by the investigators on August 17. Thus, the documentation was not sufficient. Coachman's license has been subject to disciplinary action on two other occasions. It was first suspended for thirty days effective January 6, 1987 for Coachman dealing in stolen property and purchasing cigarettes from other than a wholesale dealer. It was suspended a second time for a twenty day period effective August 9, 1988 for respondent (a) purchasing cigarettes from other than a wholesale dealer, (b) failing to maintain invoices of cigarette purchases on the premises, (c) possessing beverages not permitted to be sold under his license, (d) gambling and possession of gambling paraphernalia, and (e) conducting a prohibited lottery. Under petitioner's policy, as explicated at hearing, a license is revoked after repeat violations occur.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in the notice to show cause, as amended, and that his APS license number 39-02165 be REVOKED. DONE and ENTERED this 23rd day of March, 1989, in Tallahassee, Florida. DONALD R. ALEXANDER 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 23rd day of March, 1989.
The Issue Whether or not on or about the 2nd day of April, 1976, the Respondent, Charter Distributing Company, licensed under the Cigarette Laws, did unlawfully attempt to evade or defeat the state tax by attempting to gain a cigarette tax rebate on unstamped cigarettes, contrary to s. 210.18(1), F.S.
Findings Of Fact At all times material to the Notice to Show Cause, the Respondent, Charter Distributing Company was licensed under License No. 26-106, CWD, with the State of Florida, Division of Beverage. On April 2, 1976, Mr. Jesse Bob Cooper, an Excise Auditor II, with the State of Florida, Division of Beverage went to the licensed premises at 975 Broad Street, Jacksonville, Florida to cancel certain cigarette imprints to enable the licensee to get a refund of cigarette taxes paid. Those cigarettes upon which the imprints were to be cancelled were cigarettes which were taken out of commercial circulation because they were stale. These cigarettes were part of a quantity of cigarettes which were being returned by manufacturers representatives of the various cigarette companies to Charter Distributing Company. The arrangement was to have the cigarette company representative bring the cigarettes into the warehouse area and stack those cigarettes in a "dump area" and receive credit for them. The amounts being brought in by the manufacturers representatives were from 30 to 250 cartons on each occasion. The president of the Respondent, William Moore, would then ask the manufacturers representative if the cigarettes had the appropriate stamps for cancellation. When he was prepared, he would contact the Petitioner's representative to come over and cancel the cigarettes for refund. On April 2, 1976, when Mr. Cooper arrived to cancel the Cigarettes, the cigarettes were placed on a table and examined for proper stamps. On that date, eleven (11) packs of cigarettes were discovered which had inappropriate stamps. Nine of those packs of cigarettes were meter stamped, that is, had meter imprints that were inappropriate. One pack of the eleven packs had the heat or Addco stamp and the final pack had a hand stamp. Although the latter two packs of cigarettes had the appropriate form of stamp, the cellophane wrapper around the pack had been taped there and the stamps were not correct for those two packs. The process was being conducted by having Mr. Moore cancel the packs of cigarettes that were being examined, while Mr. Cooper witnessed. There was no effort at concealing the inappropriate packages of cigarettes made on the part of Mr. Moore. The eleven packs of cigarettes had been brought in by some undisclosed manufacturer's representative and had not been discovered until the point of checking for tax refunds, which was the activity on April 2, 1976. The Respondent, after discovery of the inappropriate stamps had been made, did not make any further request for tax refund and has not received such refund. Finally, there was no showing that the Respondent had any knowledge of the impropriety of the stamps prior to the discovery on April 2, 1976 when these eleven packs and other cigarettes were being cancelled.
Recommendation It is recommended that the Respondent, Charter Distributing Company, License No. 26-106, CWB, be released from further responsibility to answer to the Notice to Show Cause herein. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles T. Collette, Esquire Division of Beverage Department of Business Regulation The Johns Building 725 Bronough Street Tallahassee, Florida 32304 Stephen D. Busey, Esquire 500 Barnett Bank Building Jacksonville, Florida 32202
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
Findings Of Fact The Parties. The Petitioner the Department of Business Regulation and Professional Regulation Division of Alcoholic Beverages and Tobacco (hereinafter referred to as the "Division") is an agency of the State of Florida charged with responsibility for enforcing Chapter 561 Florida Statutes. The Respondent Riffy's Inc. d/b/a Riffy's Pub (hereinafter referred to as "Riffy's") is a corporation. Scott Grant possesses an ownership interest in Riffy's. At all times relevant to this proceeding Riffy's held Florida alcoholic beverage license number 19-00616 series 2-COP (hereinafter referred to as the "License"). The License authorized Riffy's to sell and possess alcoholic beverages beer and wine only on the premises of Riffy's located at 948 S.W. U.S. Highway 41 Inverness Citrus County Florida. The Division's Investigation of Riffy's. Between September 15 1993 and December 15 1993 the Division conducted an investigation of possible narcotic laws violations at Riffy's. Special Agents Michael Bays Richard Hulburt Denise Deen Ashley Murray and Dean Pescia participated in the investigation. Throughout the investigation the agents involved who had the opportunity to smoke marijuana at Riffy's simulated smoking. No marijuana was ingested so that the agents' perception would not be affected. On a number of occasions the agents witnessed the smoking of cigarettes which appeared to be marijuana. The conclusion that marijuana may have been smoked was based upon the agents' observation of the manner in which the cigarettes were smoked and the smell of what was being smoked. Unless specifically indicated otherwise in findings of fact made in this Recommended Order the evidence failed to prove that marijuana or cannabis was actually being smoked. The findings concerning those incidents are made only as evidence of whether the owner of Riffy's should have suspected that illegal activities were taking place on or near the licensed premises. Results of the Division's Investigation. September 16 1993; Count 1: Agent Hurlburt entered the licensed premises of Riffy's (hereinafter referred to as the "Premises"). Agent Hurlburt met and spoke with a patron named Neil. After discussing the consumption of marijuana Agent Hurlburt and Neil left the Premises and went to a vehicle in the parking lot of the Premises. The parking lot was for the use of patrons of Riffy's. Agent Hurlburt purchased a cigarette suspected of being marijuana from Neil. Analysis of the cigarette revealed that it was cannabis commonly known as marijuana. Agent Hurlburt simulated smoking another suspected marijuana cigarette with three other patrons. A female patron suggested to them that they go around to the side of the Premises to smoke. The purchase and smoking of the marijuana cigarette took place approximately 15 to 20 feet from the Premises. The evidence failed to prove that Mr. Grant or any employee of Riffy's witnessed these events or that Mr. Grant was at the Premises. September 30 1993: Agent Hurlburt returned to the Premises. Agent Hurlburt observed several patrons leave the Premises and go to the east side of the Premises where the female patron had suggested that Agent Hurlburt go to smoke on September 16 1993. They were then observed smoking a cigarette in a manner consistent with the manner in which marijuana cigarettes are smoked: the "joint" is held near the front end with the thumb and forefinger. The smell of the burning material was also consistent with the smell of marijuana. There were windows at the east side of the Premises. Patrons were allowed to smoke cigarettes in the Premises. They were not required to go into the parking lot of Riffy's in order to smoke. d. The individuals involved returned to the Premises. October 6 1993; Count 2: Agent Hurlburt returned to the Premises. He met an employee known as Mike. Mike was later identified as Mike Smith. Mike was a doorman for Riffy's. He collected entrance fees from patrons. Agent Hurlburt told Mike that he wished to purchase marijuana. Mike did not indicate that this was not permissible on the Premises. Mike told Agent Hurlburt that he could not get any marijuana that night but that he would have some the next night. Agent Hurlburt paid Mike for the marijuana that night with the agreement that delivery would be made the next night. The purchase was made in an open manner. No effort was made to speak softly or to hide the exchange of money. October 7 1993; Count 2: Agent Hurlburt returned to the Premises and met with Mike. Mike directed Agent Hurlburt to the restroom. Mike gave Agent Hurlburt a plastic bag containing 5.5 grams of cannabis. October 14 1993; Count 3 and 4. Agent Hurlburt returned to the Premises. Several patrons were witnessed leaving the Premises during a break by the band playing that night smoking what Agent Hurlburt believed to be marijuana and return to the Premises. Agent Hurlburt purchased 5.3 grams of cannabis from Mike. The sale took place in the restroom. Agent Hurlburt also purchased what Mike called "percs". The percs were percocet which were found to contain oxycodone. This transaction also took place in the restroom. October 22 1993: Agent Hurlburt returned to the Premises. Agent Hurlburt attempted to purchase marijuana from Mike but Mike was unable to supply any. October 28 1993; Count 5: Agent Hurlburt returned to the Premises and asked Mike if he could purchase marijuana. Mike sold marijuana to Agent Hurlburt. The money for the marijuana was given openly to Mike inside the Premises. Later Mike gave the marijuana to Agent Hurlburt: Agent Hurlburt was on a concrete slab just outside the front door of the Premises. Mike held the entrance door open and stepped onto the concrete slab where he gave the marijuana to Agent Hurlburt. The marijuana purchased consisted of 5.5 grams of cannabis. October 30 1993: Agent Hurlburt returned and twice simulated smoking marijuana with patrons and "Ron" a member of the band playing at Riffy's that night. These incidents took place outside the Premises in the parking lot. November 4 1993; Count 6: Agent Hurlburt returned and asked Mike to sell him marijuana. Mike agreed to sell 5.1 grams of cannabis to Agent Hurlburt. This agreement was reached in the Premises. Delivery took place just outside the front door the Premises. November 17 1993: Agent Hurlburt returned to the Premises. Agent Hurlburt attempted to purchase marijuana from an employee of Riffy's known as Crystal. Crystal indicated she was unable to find any that night. Crystal did not indicate that marijuana was not allowed on the Premises. Agent Hurlburt left the Premises and sat in a car in the parking lot with a patron known as "Keith." The car was parked in the front of the Premises. Agent Hurlburt simulated smoking what he believed to be marijuana based upon its odor and the manner in which Keith smoked the cigarette. The car windows were open. While in the car with Keith and while the cigarette was burning Mr. Grant and Casey manager of Riffy's walked immediately in front of the car. Casey laughing asked "what are you guys doing." Keith responded "what do you think." November 18 1993: Agent Hurlburt returned to the Premises and attempted to buy marijuana from Crystal. Crystal again told Agent Hurlburt that she could not find any marijuana that night. She again failed to tell Agent Hurlburt that Marijuana could not be purchased at the Premises. November 19 1993: Agent Hurlburt returned to the Premises. Agent Hurlburt observed several patrons smoking what appeared to be marijuana cigarettes in the parking lot of the Premises. They did not attempt to hide what they were doing. The patrons returned to the Premises after smoking. November 20 1993: Agent Hurlburt returned to the Premises. He again observed patrons smoking what appeared to be marijuana cigarettes outside the Premises in the parking lot. The patrons then returned to the Premises. Mike approached Agent Hurlburt inside the Premises and asked if he was interested in purchasing marijuana. Mike was not able however to provide marijuana that night. November 24 1993; Count 7: Agent Deen and Agent Murray went to the Premises together. The agents met Kenny Smith an employee of Riffy's. Kenny worked in the kitchen. Kenny took the agents out of the kitchen through a door to the back of the Premises to smoke what appeared to be and Kenny identified as a marijuana cigarette. The agents simulated smoking the cigarette with Kenny. Kenny also sold a 6.2 grams of cannabis to Agents Deen and Murray. The sale took place outside in the back of the Premises near the kitchen door. c. Mr. Grant was on the Premises when this transaction took place. November 24 1993; Counts 8 and 9: Agent Hurlburt returned to the Premises. Agent Hurlburt asked Mike about purchasing marijuana. Mike agreed. This conversation took place in the Premises. Mike delivered the marijuana just outside the Premises at the front door. Agent Hurlburt was sold 6.5 grams of cannabis. Agent Hurlburt also simulated smoking marijuana with other patrons outside the Premises in the rear near the kitchen door. Agent Hurlburt also purchased 5.4 grams of cannabis from a patron named "Dave." This sale took place outside the Premises. Mr. Grant was on the Premises when these events took place. December 1 1993; Count 10: Agent Hurlburt returned to the Premises. Agent Hurlburt purchased 7.1 grams of cannabis from Mike. The sale took place inside the Premises at the front door. Mr. Grant was on the Premises when the sale took place. December 2 1993; Count 11: Agent Deen and Murray returned to the Premises. The agents were introduced by Kenny to Mr. Grant in the kitchen of the Premises. Inside the Premises Kenny gave Agent Deen what he described as a marijuana cigarette. Kenny smoked the cigarette and Agent Deen simulated smoking it just outside the kitchen door. Kenny sold 3.9 grams of cannabis to the agents outside the kitchen door. December 3 1993: Agent Deen and Agent Murray returned to the Premises. The agents simulated smoking a marijuana cigarette with Kenny outside the kitchen door. The cigarette contained .1 grams of cannabis. Casey opened the kitchen door while they were smoking the marijuana and told Kenny to come inside. December 4 1993; Count 12: Agent Deen and Agent Murray returned to the Premises. Kenny told the agent to wait for him outside the kitchen door where they simulated smoking what they believed to be a marijuana cigarette. While simulating smoking the cigarette Mr. Grant was at his truck approximately 15 feet away. Mr. Grant was speaking on a mobile telephone. The agents and Kenny were in plain view of Mr. Grant. The agents also purchased 2.4 grams of cannabis from Kenny at the same location. December 9 1993; Count 13: Agent Deen and Agent Murray returned to the Premises. Kenny sold and delivered 2.4 grams of cannabis to the agents in a room used by the bands that played at Riffy's. The room is part of the Premises. The agents also simulated smoking what they believed was marijuana with Kenny and a band member outside the kitchen door. Mr. Grant was only a few feet away when the agents were simulating smoking. Mr. Grant who admitted he is familiar with the smell of marijuana was close enough to smell what was being smoked and did not make any inquiry as to what the patrons were doing. December 2 and 9 1993: a. Agent Hurlburt returned to the Premises on these dates. 30b. Agent Hurlburt observed patrons exist the Premises smoke what appeared to be marijuana in the parking lot and return to the Premises. Mr. Grant was outside the Premises on December 2 1993 when patrons were smoking outside. December 10 1993; Count 14: Agent Hurlburt returned to the Premises. Mr. Grant was present at the Premises. Agent Hurlburt told Mr. Grant that he had purchased marijuana "here." Agent Hurlburt did not specify whether "here" meant the Premises Inverness or somewhere else. Mr. Grant however did not ask Agent Hurlburt whether he meant the Premises. Agent Hurlburt then asked Mr. Grant if he knew where he could purchase some sensemilla a type of marijuana. Mr. Grant indicated that he did not known where. Mr. Grant did not indicate that he did not allow the purchase or use of narcotics on the Premises. Agent Hurlburt also purchased 6.5 grams of cannabis from Mike that evening. The money was given to Mike inside the Premises and Mike gave Agent Hurlburt the marijuana inside the Premises. December 15 1993: The Division served a Search Warrant Notice to Show Cause and Emergency Order of Suspension on Riffy's. Agent Deen arrested Kenny and confiscated a bag of marijuana from Kenny. The bag contained 2.4 grams of cannabis. A bottle of Jim Bean whiskey was found in a room on the premises used by bands. All of the uses sales and delivery of marijuana described in the foregoing findings of fact took place in a relatively open manner and little effort was taken to disguise or conceal any illegal activity. Riffy's Efforts to Prevent Violations of Law. Mr. Grant testified that he instructed employees to not to engage in drug activities. One employee substantiated this testimony but that employee was Kenny one of the individuals involved in illegal activities on and near the Premises. Mr. Grant's and Kenny's testimony concerning efforts to prevent illegal activities on the Premises is rejected. There was not other evidence of efforts by the owners of Riffy's to insure that illegal activities did not take place on the Premises. In light of the open use of what appeared to be and smelled like marijuana in the parking lot of the Premises Mr. Grant should have taken some steps to prevent illegal narcotics activities on the Premises described in this Recommended Order. This is especially true based upon Mr. Grant's admission during the hearing of this matter that he smelled what he believed to be marijuana smoke "on the way to the dumpster."
Recommendation Based upon 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 finding that Riffy's Inc. d/b/a Riffy's Pub is guilty of Counts 2 3 4 5 6 8 10 11 13 14 and 16 of case number 94-0606. It is further RECOMMENDED that Counts 1 7 12 15 and 17 of case number 94-606 be dismissed. It is further RECOMMENDED that Riffy's alcoholic beverage license number 19-00616 series 2-COP be revoked. It is further RECOMMENDED that Riffy's be assessed a $1000.00 civil penalty. DONE AND ENTERED this 14th day of June 1994 in Tallahassee Florida. LARRY J. SARTIN 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 14th day of June 1994. APPENDIX Case Numbers 94-0606 and 94-1348 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Division's Proposed Findings of Fact Accepted in 4. Accepted in 5-6 31 and hereby accepted. Hereby accepted. Accepted in 7 and 9. Accepted in 7. Accepted in 10. Accepted in 11. Accepted in 12. Accepted in 13. Accepted in 14-15. The events described in the first sentence took place on October 22 1993. Accepted in 16. Accepted in 17. Accepted in 18. Accepted in 19-21. Accepted in 23. Accepted in 8 and hereby accepted. Accepted in 22. Accepted in 24. Accepted in 25. Accepted in 26. Accepted in 27. Accepted in 27. Accepted in 28. Accepted in 30. Accepted in 31. Accepted in 32. Riffy's Proposed Findings of Fact Accepted in 4. Accepted in 3. Not supported by the evidence. Accepted in 24. Accepted in 11. Accepted in 24. The evidence did fail to prove that Mr. Grant had actual knowledge of these events. Accepted in 22. Accepted in 28. See 28. Accepted in 30. Accepted in 30. Not supported by the weight of the evidence. Statement of law. Not supported by the weight of the evidence. Statement of law. Accepted in 17. Accepted in 4. Statement of law. COPIES FURNISHED: Miguel Oxamendi Assistant General Counsel Department of Business and Professional Regulation 725 South Bronough Street Tallahassee Florida 32399-1007 Stephen C. Booth Esquire 7510 Ridge Road Port Richey Florida 34668 Sgt. Homer Scroggin Department of Business and Professional Regulation 1103 SW 1st Avenue Ocala Florida 32678-4218 Jack McRay DBPR Acting General Counsel Northwood Centre 1940 North Monroe Street Tallahassee FL 32399-0792 John J. Harris Acting Director Division of Alcoholic Beverages and Tobacco Northwood Centre 1940 North Monroe Street Tallahassee FL 32399-0792
Findings Of Fact During times material hereto, Respondent, Boyd's Service, Inc., was under the control and operation of its owner, Leslie Boyd. Respondent holds Alcoholic Beverage license no. 62-03664, series 2-APS, for a premises known as Boyds Service located at 1500 22nd Street South in St. Petersburg, Pinellas County, Florida. Commencing on or about January 12, 1990, Petitioner, the Division of Alcoholic Beverages and Tobacco, engaged in a cooperative effort with the St. Petersburg Police Department by conducting a "sting" investigation of eight businesses in the south St. Petersburg area to determine if the owners of such businesses were trafficking in stolen property. Investigators Craig Parsons, Ira McQueen, Priscilla Turner, and David Henry, all employees of Petitioner and Detectives Glen Henry, Luke Williams, Johnny Harris, Tom Kewin, and Rod Adams of the St. Petersburg Police Department participated in the sting investigation. On or about January 12, 1990, Detective Harris, while monitored by Investigator Parsons and Detective Henry, entered Respondent's licensed premises in an undercover capacity as part of the sting investigation and Detective Harris discussed with Respondent his desire to purchase property that Detective Harris asserted was stolen, to wit, several cartons of "Kool Kings" cigarettes. Respondent expressed a willingness to buy stolen property from Detective Harris but that he needed Newport cigarettes. Detective Harris indicated to Respondent that he would return on a later date with stolen Newport cigarettes for Respondent to purchase. On or about January 19, 1990, Detective Harris, while monitored by investigator Parsons and Detective Williams, drove to Respondent's premises accompanied by Investigators McQueen and Turner as part of the sting investigation. Detective Harris parked in front of Respondent's premises and exited his vehicle. Detective Harris approached Respondent and related "I have five cartons of Newport 100's for you which I stole the other day". Respondent asked Detective Harris where the merchandise was and inquired if he was "wired". Detective Harris exited the premises, returned to his vehicle, removed the cigarettes that he asserted were stolen and reentered Respondent's business. Respondent handed Detective Harris $30.00 in exchange for the cigarettes. On or about January 24, 1990, Detectives Harris and Williams, while monitored by Investigator Parsons, Detectives Henry and Kewin, reentered Respondent's licensed premises as part of the sting investigation. While there, Detective Harris introduced Respondent to Detective Williams identifying him as "Pete" and further identifying him as his buddy who works at Pace Warehouse who was stealing the property which Detective Harris was selling to Respondent. Detective Harris told Respondent that he had in his vehicle which was parked in front of Respondent's business, five cartons of Kool King cigarettes and five cases of Colt 45 beer which he asserted to be stolen. Respondent asked to see the merchandise whereupon they exited the licensed premises and the detectives opened the trunk of their vehicle to display the "stolen" merchandise. Respondent agreed to "buy it all" and directed the detectives to drive their vehicle around to the back of his premises into an attached garage area. A discussion ensued from which Respondent admitted that he had previously been arrested of dealing in stolen property and if they (the detectives) were "setting him up" he would kill them. Respondent directed the detectives to unload the property from their vehicle into the garage area. While doing so, Respondent walked to the front of the store and returned with the money in exchange for the merchandise. On or about January 29, 1990, Detective Williams, while monitored by Detectives Henry and Kewin, reentered Respondent's licensed premises as part of the ongoing sting investigation. While there, Detective Williams approached Respondent and related "I kept you in mind" to which Respondent related "I think I know what you're talking about". Detective Williams then stated to Respondent "I stole some more stuff from Pace". Respondent then asked to see the merchandise whereupon the Detectives told Respondent that they had a "trunk full of stuff, they don't even know it's gone yet". Detective Williams related having about nine cases of beer and some cigarettes which he agreed to let Respondent purchased for $60.00. Respondent agreed to make the purchase whereupon Detective Williams and Respondent exited the licensed premises and Detective Williams opened the trunk of his vehicle to display the merchandise. Respondent directed Detective Williams to bring the beer into the licensed premises and Respondent removed two cartons of Newport 100's and two cartons of Kool cigarettes which he (Respondent) carried into the licensed premises. Upon reentering the licensed premises, Detective Harris and Respondent negotiated a price for the merchandise. Respondent tendered Detective Williams $36.00 from the cash register in exchange for the "stolen" merchandise. Before leaving, Detective Williams advised Respondent that he would have to slack off from stealing from Pace because he had taken quite a bit over the past week. Respondent requested that Detective Williams bring him some cigarettes and some more Old Milwaukee beer concluding that he could not buy what he could not sell and that he still had some Colt 45 left from his last purchase. On or about January 30, 1990 Officer Adams entered Respondent's licensed premises on two separate occasions and purchased two cans of Colt 45 beer, two packs of Newport 100's and four packs of Kool cigarettes. These items were turned over to Detective Henry who secured their custody until the hearing herein. Upon examination, it is determined that three of the four packs of Kool cigarettes had an Indian tax exempt stamp affixed and the two packs of Newport 100's had an extra pin dot affixed to the state tax seal. These were specific identifying marks which the detectives had affixed to identify property which they sold to Respondent during the course of the sting investigation. On or about March 29, 1990, Detectives Williams, Henry, Kewin and Investigators Parsons and Merrill reentered the licensed premises and arrested Respondent. Respondent was transported to the St. Petersburg Police Department where his Miranda rights were explained to him. He was thereafter interviewed by Detective Henry and Investigator Merrill. During the course of the interview, Respondent was allowed to listen to a cassette tape which contained a recording of a conversation which took place on the licensed premises on January 19, 1990 between Respondent and Detective Harris. In that tape, Respondent is heard agreeing to purchase the stolen property. Respondent admitted it was his voice on the tape and confessed to Detective Henry and Investigator Merrill that he had previously purchased property which was allegedly stolen from them on three different occasions.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Respondent's Alcoholic Beverage license no. 62-03664, series 2- APS, be revoked. RECOMMENDED this 25th day of April, 1991, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1991.
