The Issue Whether the Respondents purchased cigarettes and alcoholic beverages from other than licensed distributors contrary to statute.
Findings Of Fact On August 21, 2002, Cynthia Britt and Sabrina Maxwell, agents of the Petitioner, conducted a routine inspection of the Respondents’ convenience store. At the beginning of the inspection, Britt and Maxwell identified themselves as agents of the Petitioner and asked for access to the area behind the counter and to see Respondents' license. When Agent Britt moved behind the counter, she saw several packages of cigarettes in the overhead storage display that did not bear the State of Florida tax stamp. Agent Britt seized these packages of cigarettes. Agent Britt identified 55 packages of cigarettes she seized as Petitioner’s Composite Exhibit D. The trier of fact examined these cigarettes and returned the exhibit to the Petitioner to secure them as part of the record. Agent Britt asked Ms. Kemp for invoices for the purchase of their cigarettes. These receipts were produced and they were also seized. Agent Britt identified these receipts as Exhibit E, the receipts for purchases from unlicensed distributors, and Exhibit F, the receipts from licensed distributors.1 The receipts reflected that the Respondents had purchased cigarettes for resale from other retailers and from the Navy Exchange. The cigarettes that did not have tax stamps were purchased from the Navy Exchange. Ms. Kemp indicated to the agents that cigarettes were purchased from these retailers and the Navy Exchange because the wholesalers required that they purchase too many, or charged them so much for small quantities that they could buy them more cheaply at retail. In the process of reviewing the receipts for the purchase of the cigarettes, the Agent Maxwell discovered six receipts for the purchase of alcoholic beverages. She conducted a search of the premises and found beverages corresponding to the brands purchased on the receipts; however, there was no way to ascertain whether these beverages were the actual ones purchased.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Petitioner destroy the cigarettes seized and impose a fine of $250 on the Respondents for violation of Section 210.18(1), Florida Statutes; and impose a fine of $250 for violation of Section 210.15(1)(h), Florida Statutes. It is also recommended that the alleged violations of Section 561.14(3), Florida Statutes, be dismissed. DONE AND ENTERED this 2nd day of July, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 2nd day of July, 2002.
Findings Of Fact Respondent is the holder of a beverage license grand-fathered in by Section 561.20(2)(b), Florida Statutes (1975), which has as a condition that respondent maintain facilities for serving full course meals to 200 patrons. After being closed for some years, respondent reopened for business on May 13, 1977. David Maloney was hired as cook and manager and became an officer of respondent. On June 3, 1977, Mr. Grady Leon Broxton, Jr., a beverage officer in petitioner's employ, inspected respondent's premises and inventoried chairs, tables, and tableware. He found 204 chairs and 51 tables, 176 plates, 125 forks, 80 knives, 250 bread dishes, 250 salad bowls, 86 cups and less than 200 spoons. Accordingly, Officer Broxton issued a formal notice of these deficiencies, directing respondent to bring up to 200 the numbers of plates, spoons, forks, knives and cups. When Officer Broxton returned on June 9, 1977, he found that respondent had cured the deficiencies and was in full compliance with the conditions of its license. By enacting Florida Laws Chapter 77-409, the 1977 Legislature increased the excise tax on packages containing 20 cigarettes from 17 to 21 cents per package, effective July 1, 1977, Florida Laws, Chapter 77-409, ss. 1 and 5. On July 7, 1977, Officer Broxton entered respondent's premises and advised David Maloney that he should multiply by $.04 the number of cigarette packages respondent had for sale on July 1, 1977, and send a check or money order in that amount to petitioner. Officer Broxton noticed approximately five cartons of cigarettes on the premises at that time. On July 10, 1977, David Maloney wrote petitioner that, as of July 1, 1977, "only two packs of cigarettes were on hand," petitioner's exhibit No. 2, and enclosed a check in the amount of eight cents ($.08). In the cover letter, Mr. Maloney addressed petitioner's employees as "you Assholes." Shortly after mailing the letter and check, Mr. Maloney quit respondent's employ without notice. When respondent's president, William B. Miller, III, discovered that Mr. Maloney had left, he also noticed that cigarettes, liquor and silverware were missing. On July 21, 1977, petitioner's Lieutenant George Fader entered respondent's premises and noticed customers drinking alcoholic beverages at the bar. He introduced himself to Mrs. Miller, who was behind the bar. She said the eight cents ($.08) must have been a mistake and that Mr. Maloney had gone but that she did not know where. Lt. Fader noticed that there was a pool table in the restaurant. At the time of Lt. Fader's visit, Mr. Miller was at respondent's bank putting in stop payment orders for fear Mr. Maloney might have drawn checks on respondent's account for unauthorized purposes. Before leaving, Lt. Fader made a hurried count of chairs, exclusive of folding chairs, and concluded that there were some 185 on the premises. The following day, Lt. Fader and Officer Broxton returned to respondent's premises and advised Mr. Miller that respondent could be charged criminally with tax fraud. When petitioner's agents told Mr. Miller that they estimated that there were 60 packages of cigarettes on the premises on July 1, 1977, Mr. Miller offered to write a check for two dollars and forty cents ($2.40). Mr. Miller wrote petitioner a check, but, at Lt. Fader's suggestion, the amount was reduced by eight cents ($.08) to two dollars and thirty-two cents ($2.32). Officer Broxton counted 44 tables and 140 chairs, excluding folding chairs, even though he had included these on his earlier visit. He did not count folding chairs on July 22, 1977, because Lt. Fader directed him not to. Officer Broxton found 121 teaspoons, 112 forks, 154 knives and 118 cups on July 22, 1977. Lt. Fader told Mr. Miller that there need not be 200 cups, if glasses and cups together numbered 200 and if there were 200 water glasses. There was no evidence as to the number of glasses on respondent's premises on July 22, 1977.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner assess a civil penalty against respondent's license in the amount of twenty-five dollars ($25.00). DONE and ENTERED this 27th day of February, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Francis Bayley, Esquire The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Mr. W. R. Phillips, Esquire Post Office Box 594 Carrabelle, Florida 32322
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.
The Issue Whether, pursuant to section 210.30, Florida Statutes (2016),2/ Petitioner, Jemco Enterprises, Inc., d/b/a Payless Tobacco Source (“Jemco”), owes a tax deficiency in the amount of $5,582.73 for the audit period from July 1, 2016, to October 31, 2016, plus $558.27 in penalties and $144.43 in interest, for a total amount due of $6,285.43.
Findings Of Fact Jemco is a Florida corporation that is a distributor of tobacco products in Florida, pursuant to Wholesale License No. WDE1614464. The Division is the state agency charged with administering and enforcing chapter 210, related to the taxation of tobacco products. It is undisputed that Jemco is a distributor of tobacco products in Florida, and that it engaged in the distribution of tobacco products during the period of July 1, 2016, through October 31, 2016. It also is undisputed that Jemco was engaged in the distribution of tobacco products, on which it paid an applicable excise tax and surcharge, before July 1, 2016. As discussed in greater detail below, pursuant to section 210.30, an excise tax is imposed on all tobacco products and on any person engaged in business as a distributor in Florida at the rate of 25 percent of the wholesale sales price of such tobacco products. This excise tax is due to be paid during the month in which the licensed distributor purchases the tobacco products and brings them in state for sale in Florida. Additionally, pursuant to section 210.276, a surcharge is imposed on all tobacco products and on any person engaged in business as a distributor in Florida at the rate of 60 percent of the wholesale sales price of such tobacco products. This surcharge is due to be paid during the month in which the licensed distributor purchases the tobacco products and brings them in state for sale in Florida. In 2016, the Florida Legislature amended the definition of “wholesale sales price” in chapter 210. This amendment, which went into effect on July 1, 2016, changed the assessment of the excise tax and surcharge on the distribution of tobacco products. At some point——and the evidence does not establish when——the Division posted notice of this statutory amendment to the definition of “wholesale sales price” on its website. However, it did not notify distributors, including Jemco, by regular or electronic mail. Consequently, Jemco was unaware of this change in the law. On or about February 16, 2017, Alicia Cortez, an auditor employed by the Division, conducted a tax audit on Jemco for the audit period between July 1, 2016, and October 31, 2016. In conducting the audit, Cortez reviewed copies of out-of-state supplier invoices for tobacco products sold by the out-of-state suppliers to Jemco. These documents showed the total amount of the sales of tobacco products by out-of-state suppliers to Jemco. She verified these purchases by reviewing Jemco's bank statements. Cortez also reviewed the In-State Tobacco Products Wholesale Dealer's Reports (“Monthly Report”) submitted by Jemco to the Division on a monthly basis. These Monthly Reports, which are submitted in electronic format, show the net taxable purchases, excise tax amount, surcharge amount, and total amount——which consists of the excise tax and surcharge——due for that particular month, as calculated by Jemco. The Monthly Reports also show the amount of excise tax and surcharge paid by Jemco for purchases of tobacco products from out-of-state suppliers for that month. Cortez compared the total amount of taxable purchases of tobacco products, as determined by a review of the out-of- state supplier invoices, with the taxable purchases and excise tax and surcharge paid by Jemco for the particular month, as reported in its Monthly Reports. Here, the audit showed that Jemco did pay some excise tax and surcharge for the period between July 1, 2016, and October 31, 2016, but that it also had a tax deficiency of $5,583.73 for failure to pay the full amount of the excise tax and surcharge due during the audit period. With the imposition of $144.43 in interest and a penalty of $558.27, Jemco was determined to owe a total of $6,285.43. At Jemco's request, an audit conference between the Division and Jemco was conducted on June 19, 2017. The conference did not result in any change to the total amount of excise tax, surcharge, penalty, and interest that Jemco was determined to owe. As more fully discussed below, pursuant to section 120.80(14), which governs taxpayer contest proceedings under chapter 210, the Division has the initial burden in this proceeding to demonstrate the factual and legal grounds for the tax assessment. Once the Division makes that showing, the entity contesting the assessment——here, Jemco——has the burden to show the assessment was incorrect. Jemco contends that it did not intentionally try to evade paying its taxes due for the audit period, and asserts two grounds for disputing the assessed amount of $6,285.43. First, Jemco contends that, in addition to the period between July 1, 2016, and October 31, 2016, the audit also covered the months of May and June 2016. However, all of the documentary evidence admitted into the record of this proceeding, including the supplier invoices, Monthly Records, audit report, and auditor's summary sheet clearly shows that the Division audited only the period consisting of July 1, 2016, through October 31, 2016. The evidence shows that the Division purposely chose to audit only this four-month period, rather than a typical six-month audit period, specifically because the amended definition of “wholesale sales price” went into effect on July 1, 2016, and the Division decided to “have a clean cut off” in conducting audits. The evidence clearly and uniformly refutes Jemco's argument that the audit actually covered a six-month period, from May 1, 2016, to October 31, 2016.3/ Jemco also asserts that it should not be held liable for the tax deficiency for the audit period because it was unaware of the amended definition of “wholesale sales price” that went into effect on July 1, 2016. It characterizes the Division's assessment of tax deficiency, penalties, and interest based on the 2016 amendment to that definition as a “got-you attack.” The undersigned finds the testimony of Solis and Hershewsky credible and sympathetic that Jemco never intended to avoid paying the excise taxes and surcharges that it owed under the law, and that Jemco only found out that it was not paying the correct amount of taxes and surcharge for the audit period when the audit commenced in early 2017. It is understandable that a small business like Jemco could be caught unaware of a change in the law——particularly when it was not directly notified by regular or electronic mail of the changed law. However, as a wholesale distributor licensee subject to chapter 210, Jemco is nonetheless presumed to be aware of, and required to follow, this statute in accurately paying its excise taxes and surcharges. To that point, Florida case law states that “[a]s to notice, publication in the Laws of Florida or the Florida Statutes gives all citizens constructive notice of the consequences of their actions.” L & L Docs, LLC v. Div. of Alcoholic Bevs. & Tobacco, 882 So. 2d 512, 515 (Fla. 4th DCA 2004)(quoting State v. Beasley, 580 So. 2d 139, 142 (Fla. 1991)). Thus, “ignorance of the law is no excuse.” Davis v. Strople, 158 Fla. 614, 29 So. 2d 364 (Fla. 1947). Here, after the Legislature amended the definition of “wholesale sales price” in 2016, this amended definition was published as part of chapter 2016-220, Laws of Florida, and also as subsection 210.25(14), in the 2016 version of Florida Statutes, which remains in effect to date.4/ Under Florida law, Jemco, as a regulated licensed wholesale distributor of tobacco products, is responsible for being aware of, and complying with, the applicable law——here, the amended definition of “wholesale sales price” that went into effect on July 1, 2016. Nevertheless, it is noted that had the Division directly——by electronic mail or regular mail——informed wholesale distributors of tobacco products of the changed definition of “wholesale sales price” after it was enacted by the Legislature during the 2016 Legislative Session and before it went into effect on July 1, 2016, Jemco——and, presumably other distributors of wholesale tobacco products, some of which are small businesses——would have been informed of the change, so may not have incurred a tax deficiency, with accompanying penalty and interest. This is mentioned for the Division's consideration in informing licensees of significant future changes in the law that could affect their liability for tax deficiencies, penalties, and interest. Based on the foregoing findings, it is determined that the Division met its burden, pursuant to section 120.80(14)(b), to establish the factual and legal grounds on which the assessment of $6,285.43 was made. It is further determined that Jemco did not meet its burden under section 120.80(14)(b) to show that the assessment was incorrect. The clear and convincing evidence supports the Division's imposition of the proposed penalty and interest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, issue a final order imposing an excise tax and surcharge assessment of $6,285.43 on Jemco. DONE AND ENTERED this 14th day of February, 2019, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 2019.
The Issue This is a license discipline case in which Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged unlawful sale of an alcoholic beverage and cigarettes to a minor.
Findings Of Fact At all times relevant and material to this proceeding, the Respondent held license number 23-12104, series 2-APS, authorizing it to sell alcoholic beverages on the premises of New Hialeah Supermarket, located at 3201 East 4th Avenue, Hialeah, Dade County, Florida (hereinafter "the licensed premises"). Aleya Ribhi Maali (hereinafter "Maali") is the sole corporate officer and shareholder of the respondent corporation. On September 24, 1996, Special Agents Spayd, Smith, and Delmonte conducted random tests of alcoholic beverage licensees' compliance with laws prohibiting the sale of alcoholic beverages to persons under the age of 21 and tobacco to persons under the age of 18. On September 24, 1996, Investigative Aide C. R.2 entered the licensed premises in furtherance of the above referenced investigation. C. R.'s date of birth is August 15, 1979. She was 17 years of age at all times relevant to these proceedings. C. R. selected a can of Budweiser beer from the back of the store. She then approached Maali at the cash register counter and asked her for a pack of Marlboro cigarettes. Maali handed C. R. the pack of cigarettes which she had retrieved from the display behind the register counter. Respondent proceeded to sell C. R. the can of Budweiser beer and the Marlboro cigarettes. Maali did not request to see any identification as proof of legal age, nor did she ask C. R. her age. Maali was questioned by Agents Delmonte and Smith. Maali admitted that she had not been paying attention to what she had been doing. She said that she had been working in the store since 8:00 a.m. At the formal hearing she testified that the sale to C. R. was a consequence of being tired and confused because of the long work day. She testified that at the time of the sale she had been thinking about going home to make dinner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered in this case concluding that the Respondent is guilty of the two unlawful sales charged and imposing a penalty consisting of a 7-day license suspension and administrative fines in the total amount of $1,500.00 DONE AND ENTERED this 14th day of May, 1997, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1997.
The Issue The issue in this case is whether Petitioner should suspend or revoke Respondent's alcoholic beverage license, pursuant to Section 561.29(1), Florida Statutes (1995),1 and Florida Administrative Rule 61A-2.022,2 because Respondent operated the licensed premises in a manner that was a public nuisance and permitted others to violate state criminal laws prohibiting the possession and use of controlled substances, or both.
Findings Of Fact Petitioner is the state agency responsible for regulating alcoholic beverage licenses. Respondent holds alcoholic beverage license number 15-02695, series 2-COP for the Red Top Lounge located at 2804 Kennedy Street, Mims, Florida (the "licensed premises"). Respondent is the sole proprietor of the licensed premises. On February 13, 1997, two of Petitioner's special agents ("SAS") and other undercover law enforcement officers entered the licensed premises as part of an ongoing narcotics investigation. Several patrons of the licensed premises were consuming marijuana and rolling marijuana cigars in plain view of Respondent's employees and managers. Respondent was not present at the time. On February 28, 1997, the same SAS and law enforcement officers returned to the licensed premises incident to the same investigation. The SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Black." On March 14, 1997, the same SAS and law enforcement officers returned to the licensed premises incident to the same investigation. After midnight on March 15, 1997, the SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Marty." On March 15, 1997, the same SAS and law enforcement officers returned to the licensed premises, incident to the same investigation. After midnight on March 16, 1997, the SAS purchased a small package of marijuana for $10 from an unknown patron. The disc jockey routinely encouraged patrons over the public address system to smoke marijuana inside the licensed premises. On April 25, 1997, one of the same SAS, another SAS, and other law enforcement officers returned to the licensed premises incident to the same investigation. The SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Kenny Harvey." On April 26, 1997, the same SAS and law enforcement officers involved in the investigation on the previous day returned to the licensed premises. After midnight on April 27, 1997, the SAS purchased a small package of cocaine for $10 from Kenny Harvey. On May 2, 1997, two SAS previously involved in the investigation and other law enforcement officers returned to the licensed premises. After midnight on May 3, 1997, the SAS purchased a small package of cocaine for $10 from Kenny Harvey. After midnight on May 3, 1997, two SAS previously involved in the investigation and other law enforcement officers returned to the licensed premises. The SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Roy." After the previous transaction on May 3, 1997, the SAS purchased a small package of cocaine for $10 from Kenny Harvey. After midnight on May 4, 1997, the SAS purchased a small package of marijuana for $10 from an unknown patron. Subsequent to each purchase of marijuana by the SAS, the items purchased were chemically analyzed in a laboratory and found to be marijuana. Subsequent to each purchase of cocaine by the SAS, the items purchased were chemically analyzed in a laboratory and found to be cocaine. The SAS involved in the investigation have extensive experience and training in narcotics investigation and detection of controlled substances. They have conducted numerous undercover investigations. Each agent has personal knowledge of the appearance and smell of marijuana. The open, flagrant, and notorious drug activity on the licensed premises was the worst each agent had observed in his career. Each time the SAS entered the licensed premises, underage patrons consumed alcoholic beverages. More than half of the patrons present on each occasion consumed and rolled marijuana cigars. The second-hand marijuana smoke inside the premises was so great that the SAS were concerned for their personal health and the affect the second-hand smoke could have on each agent if subjected to a random drug test, pursuant to agency policy. The purchase, consumption, and use of marijuana occurred in plain view of Respondent's employees and managers. Respondent's managers and employees never attempted to prohibit the illegal drug activity. Respondent was never present on the licensed premises. She was caring for her daughter who died on April 2, 1997. During the time she was caring for daughter, Respondent relinquished management and control of the licensed premises to her granddaughter and her boyfriend.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order revoking Respondent's alcohol and tobacco license. DONE AND ENTERED this 7th day of August, 1997, in Tallahassee, Leon County, 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 7th day of August, 1997.
Findings Of Fact Upon consideration of the parties' joint stipulation of facts, the following relevant facts are found: The Seminole Indian Tribe is a federally recognized tribe organized under the Indian Reorganization Act of June 18, 1934, (25 U.S.C. Section 475) with an adopted and approved constitution and bylaws. Pursuant to ordinance all cigarette sales are conducted by retail outlets licensed and taxed by the Seminole Tribe of Florida. These retail outlets lease property from the Seminole Tribe on lands which are part of the Seminole Indian Reservation. This is Federal Indian Reservation land held in trust for the Seminole Tribe and managed by the Bureau of Indian Affairs. The Florida Seminole Indian Tobacco Association is a nonprofit association of Seminole Indian merchants who operate cigarette shops on the Seminole Indian Reservation in the State of Florida. These merchants buy cigarettes from wholesalers and sell them at retail to the general public. The members of the association do not collect or pay any cigarette tax to or for the benefit of the State of Florida. In early 1977 certain enrolled members of the Seminole Tribe of Florida contacted the respondent, through the agency hear, Charles A. Nuzum, with respect to the Indian Smoke Shops' sale of untaxed cigarettes to members of the public. At that time the respondent agreed that such sales were legal and were not taxable. The relevant portions of Chapter 210, Florida Statutes, relating to cigarette taxes were then identical to Chapter 210 as it exists today, with the exception of Section 210.05(5), effective June 29, 1979. Prior to 1979, the cigarettes sold to the public by the Indians were shipped in by common carrier from the State of Alabama. The respondent knew that such cigarettes sold to the general public did not bear indicia of the payment of the Florida cigarette excise or privilege tax and knew that the tax was not collected or remitted by the retail dealers or by the Seminole Tribe of Florida. Nor was the tax collected or remitted by wholesalers outside of the State of Florida. The respondent was sued in the Circuit Court of Leon County, Florida, in the case of Vending Limited, Inc., d/b/a Ace Saxon, a Florida corporation, and Edward J. Stack, Plaintiffs, v. State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, and Charles A. Nuzum, Director, Defendants; Case No. 77-1933. The legal position of the Department in that case was that no cigarette tax was due. Senate Bill 981 was introduced in the Florida Legislature on April 20, 1979. It subsequently passed the House and Senate, was approved by the Governor on June 29, 1979, and became Chapter No. 79-317, Laws of Florida. Relevant portions of Chapter 79-317, Laws of Florida, are now codified as Section 210.05(5), Florida Statutes, 1979, which reads as follows: 210.05 Preparation and sale of stamps; discount.-- * * * (5) Agents or wholesale dealers may sell stamped but untaxed cigarettes to the Seminole Indian Tribe or to members thereof, for retail sale. Agents or wholesale dealers shall treat such cigarettes and the sale thereof in the same manner, with respect to reporting and stamping, as other sales under this chapter, but agents or wholesale dealers shall not collect from the purchaser the tax imposed by s. 210.02. The purchaser hereunder shall be responsible to the agent or wholesale dealer for the services and expenses incurred in affixing the stamps and accounting therefor. Prior to the enactment of this statute, Florida wholesalers were prohibited from offering for sale or use any cigarettes which did not bear a stamp indicating payment of the required state tax. During the time that Senate Bill 981 was pending in the Legislature and after it became law, the respondent interpreted its language to provide that licensed Florida wholesalers could sell stamped but untaxed cigarettes to Seminole Indian retailers. The Respondent knew that such cigarettes would be resold to the general public. Pursuant to its interpretation of Section 210.05(5), Florida Statutes, the Department initiated rulemaking proceedings and adopted Rules 7A-10.26(1) through (7), Florida Administrative Code. Those rules provide that licensed Florida wholesalers can sell stamped but untaxed cigarettes to Seminole Indian retailers. The Division knew at the time the rules were adopted and knows now that such cigarettes would be resold to the general public. Since the enactment of Section 210.05(5), Florida Statutes, and Rules 7A-10.26(1) through (7), Florida Administrative Code, Seminole Indian retailers, with the full knowledge and agreement of the Department, have purchased cigarettes from Florida wholesalers bearing a stamp and the replica of an Indian heard indicating that no tax had been paid on these cigarettes. The cigarettes were stamped and records were kept in order to prevent bootlegging of untaxed cigarettes. Department personnel trained Seminole Indian retailers in the proper record-keeping procedures to be sued by said retailers to ensure that the cigarettes actually received by the Indian retailers were commensurate with the amount of cigarettes listed on the wholesalers reports forwarded to the Department. The number of retail cigarette dealers on the Seminole Indian Reservation has increased from the one initial dealer in 1977 to 18 dealers now licensed by the Seminole Tribe of Florida. The number of cartons sold by said Indian dealers has increased from an average of approximately 120,000 cartons per month in 1977 to approximately 4000,000 cartons per month at the present time. Petitioner Barone Sales Company has been licensed by the respondent as a wholesale dealer of cigarettes in the State of Florida and, since the enactment of Section 210.05, Florida Statutes, has sold stamped but untaxed cigarettes to the Seminole Indian Tribes located in Florida for resale. During this period of time, Barone Sales Company has not remitted any cigarette taxes to the respondent as a result of the sale of cigarettes to the Indians, even though many of the cigarettes were being sold to members of the general public by the Indians. Furthermore, the respondent has not requested Barone Sales Company to remit an cigarette taxes on these sales. Said sales were made with the full knowledge of the respondent. During this same period of time, the Seminole Indian Tribes have sold these cigarettes at retail to Indians and to the general public without collecting any taxes on such sales. The respondent has not requested or demanded that they do so. Said sales were made with the full and complete knowledge of the respondent. Since Section 210.05(5), Florida Statutes, became law and since the adoption of current Rule 7A-10.26(1) through (7), Florida Administrative Code, there has been no change in the Florida statutory law relevant to this matter; there has been no change in Florida case law relevant to this matter; and there have been no factual changes relevant to this matter. On June 10, 1980, the Supreme Court of the United States rendered its decision in the case of Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. , 65 L. Ed. 2d 10, 100 S. Ct. 2069, 48 U.S.L.W. 4668. This decision by the United States Supreme Court is the sole motivating factor for the Respondent's decision to amend Rule 7A-10.26, Florida Administrative Code, as now proposed.
