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
The Issue Petitioners' liability for sales tax, penalty and interest as set forth in revised notice of proposed assessment dated February 1, 1978.
Findings Of Fact On September 15, 1975, Miles L. Johnson, a Beverage Agent with the Division of Alcohol and Tobacco, Department of Business Regulation, conducted a surveillance of premises occupied by Petitioners located at 4440 Southwest 64th Court, Dade County, Florida. Shortly after 8:00 a.m., he observed one Andy Tucker arrive and enter the residence and later exit the same carrying something which he placed in the trunk of a car. He then reentered the house. Agent Johnson looked in the trunk and observed that it contained numerous cartons of cigarettes. Tucker again exited from the residence carrying a case of cigarettes which he also placed in the trunk. He then drove to another house, followed by Johnson, who observed him take the cigarettes into a garage. Johnson then prepared an affidavit and obtained a warrant from the Dade County Circuit Court to search the Marson residence for un-taxed cigarettes. Johnson gave the warrant to another agent, John Fay, to serve the same upon the Marsons. Johnson later arrived at the residence and observed that Marson had a copy of the warrant in his possession and that Fay had his copy and was executing the return thereon. Johnson was informed by officers at the residence that 420 cartons of cigarettes, marijuana and contraband liquor had been found in the house. The agents also had found certain records in the form of invoices from a cigarette distributor in North Carolina indicating purchases of a large amount of cigarettes, together with handwritten notes showing the sale of cigarettes to a large number of individuals, Johnson observed that the cigarettes had North Carolina excise tax stamps, but no Florida tax stamps thereon. The Marsons were thereafter arrested and the cigarettes and other materials were seized and retained by the Beverage Agents. No return was made on the search warrant, however, due to the fact that the Department's copy of the warrant was inadvertently left in the Marson residence and was never recovered (testimony of Johnson). Agent Victor E. Sosa of the Department of Business Regulation was assigned to prepare an excise tax warrant on the cigarettes seized from the Marson residence. For this purpose, he used the case report prepared by Agent Miles Johnson. Thereafter, the report was forwarded to the Department of Revenue. It contained information to the effect that 24, 171 cartons of un- taxed cigarettes allegedly sold by the Petitioners were subject to State sales tax. Respondent's auditor thereafter issued a formal demand to the Marsons to produce records concerning cigarette transactions, but they did not produce any such records pursuant to the request. The auditor proceeded to prepare an estimated proposed assessment on the basis of the information provided by the Department of Business Regulation. Notice of proposed assessment of tax, penalties and interest under Chapter 212, Florida Statutes, in the total amount of $6,094.08 was issued to Petitioners on December 27, 1977 (Testimony of Sosa, Pooley, Tompkins, Respondent's Exhibits 1, 2).
Recommendation That the proposed assessment against Petitioners be withdrawn. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 1st day of June, 1979. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1979. COPIES FURNISHED: William D. Townsend, Esq. Assistant Attorney General The Capitol, Room LL04 Tallahassee, Florida 32304 Richard A. Burt, Esq. 527 Ingraham Building Miami, Florida 33131
The Issue The issue in this case is whether Respondent failed to pay tax surcharges, penalties, and interest owed on the sale of cigarettes, and, if so, the amount that is currently due and owing.
Findings Of Fact The Department is the state agency responsible for monitoring the sale of tobacco products and for assuring that all businesses selling such products pay the requisite surcharges on each pack of cigarettes sold. Respondent is a convenience store which is licensed to sell tobacco products. The store also sells alcoholic beverages, food items, and miscellaneous other products. The sales tax associated with the sale of tobacco products (only) is at issue in this proceeding. The 2009 Florida Legislature enacted legislation imposing a $1.00 per pack surcharge on each pack of cigarettes sold in this state beginning July 1, 2009. Retailers having a cigarette inventory and, as of that date, would be required to pay a "floor tax" of $1.00 per pack in their inventory. In February 2010, the Department received a letter from an anonymous source (who identified himself as "A Good Civilian (Business Owner) (Who always pays tax)[sic]." The letter had a flyer attached to it which had been distributed by Respondent. The flyer identified a number of products for which buyers could realize "[t]he lowest prices in Polk County." Included in the list of products were various tobacco items, including cigarettes. The anonymous source's letter suggested that anyone who could sell the tobacco products at those prices must be doing something illegal. Based on the allegations in the anonymous letter, the Department decided to investigate. A team was sent to one of Respondent's stores (hereinafter referred to as "Store 1") on February 18, 2010. The team did an inventory of tobacco products at Store 1. There were 2,855 packs of cigarettes at Store 1. Some of the cigarettes were in individual packs; some were still in cartons (which contain ten packs each). The cigarette packs had the requisite state stamp on them. However, most of the packs had a stamp which had been in existence prior to the change in law on July 1, 2009. The fact that most of Store 1's cigarette packs had the old stamp meant that the cigarettes had been around for a while. The inventory eventually formed the basis for an audit performed on Respondent's other store ("Store 2"). Store 2 had just recently opened and was stocked with cigarettes brought over from Store 1. There were, therefore, no invoices available at Store 2 as to the purchase of the cigarettes it had on hand. The audit process involved a determination of distributors from which Respondent purchased its cigarettes. The two primary distributors were Sam's Club and Dosal. The Department ascertained from those distributors how many packs of cigarettes Respondent had purchased over a given span of time. Sam's Club provided records seeming to indicate the purchase of 37,770 packs between February 1 and June 29, 2009; another 9,090 packs were purchased between July 4, 2009, and January 29, 2010. Dosal said 65,490 packs had been purchased between March 3 and June 23, 2009; another 17,800 were purchased between July and December 2009. An audit investigation was commenced at Store 2 on March 17, 2010. The auditors did not ascertain the actual number of packs of cigarettes on hand at the store on that date. The auditors talked with the owners of the stores (Salah Rabi and his brother, Mohammed Rabi) about their sales history. Pursuant to requests of the auditors, the owners also sent in some additional records reflecting their sale of cigarettes. In order to calculate the number of cigarette packs sold by Store 2 during a four-month period, the auditors determined how much business the store had done in all products (including non-tobacco products) for that period. Respondent gave the Department a list of daily sales on all products sold and the taxes paid on those products for the period February 2009 through January 2010. The average monthly sales amount for the store during the audit period was $25,000. However, the Department found the information provided by Respondent to be incomplete and, thus, unreliable. The auditors then assumed that 80 percent of the store's sales were for cigarettes1/ and that the average price per pack was $4.50. Using this formula, the auditors found that approximately 4,444 packs of cigarettes were sold each month, which the auditors rounded up to 4,500. Thus, for the audit period, the auditors estimated that 18,000 packs of cigarettes were sold. Neither of the auditors testified at final hearing as to the reasonableness of the formula or as to their alleged conversations with the owners. Based on their findings, the auditors concluded that Respondents owe a balance of $77,798.23. That figure was derived as follows: Total packs purchased 3/09 - 6/09 from Dosal 65,490 from Sam's 37,770 Total purchases prior to 7/1/09 103,260 Estimated monthly sales at 4,500 packs per month for four months 18,000 Total estimated inventory on 7/1/09 85,260 Floor tax due on estimated inventory $85,260 Floor tax paid $ 4,963,09 Unpaid floor tax $80,296.91 Overpayment on other tobacco product $(2,498.54) Total cigarette floor tax due $77,798.37 Missing from the evidence presented was any statement by the Department as to whether, on March 17, 2010, or any other date, there were 80,000-plus packs of cigarettes visible at the store. It seems plausible that so many packs, even if in cartons of 10 packs apiece, would be easy to identify. Respondent refutes the basic premise of the auditor's findings. Using cash register receipts (called Z Tapes) from March and May 2009 (two of the four months at issue), Respondent was able to establish a more accurate percentage of cigarette sales versus all products sold. The Z Tapes are printed out each day by way of turning a key on the cash register. The tapes print out a receipt showing the date, the number of packs of cigarettes sold, the number of food items sold, and the number of taxable items sold. According to the Z Tapes, close to 90 percent2/ of Store 2's total sales for those months were cigarette sales, i.e., a much higher percentage than used by the auditors. The evidence presented by the owners is credible and persuasive. Respondent also provided a calculation of its price per pack of cigarettes. The price depends, in part, on how much they pay the distributors for each pack or carton of cigarettes. Of its four best selling cigarettes, the following costs were determined for the period March through June 2009: Brand Cost Markup Markup% Price 305's 2.93 .06 2 2.99 Marlboro 4.66 .08 1.7 4.74 Romy 2.75 .21 7.0 2.96 Newport 4.45 .34 7.6 4.79 Then, using the inventory of products on hand, a weighted average markup percentage was calculated as follows: Brand Weighted Number Weighted Cost Weighted Price Markup 305's 5,900 17,287 $17,641 Marlboro 1,957 9,394 9,276 Romy 1,611 4,430 4,769 Newport 108 454 517 TOTAL 31,565 $32,203 2.02% Based on the foregoing calculation, the owners estimated an average price per pack of $3.00, i.e., much less than the $4.50 per pack figure utilized by the auditors. The unrefuted testimony of the owners is credible and seems reasonable based upon the facts. Inasmuch as neither of the auditors was available to provide further justification for their price-per-pack estimation, the owners' calculation is accepted for use in this proceeding. Respondent purchased 91,520 packs of cigarettes during the period of March 2009 through June 2009. Respondent sold 55,634 packs of cigarettes during that same period. The average price per pack sold was $3.00 (three dollars). Based on the foregoing, Respondent had a floor inventory of 35,886 packs of cigarettes on July 1, 2009. Respondent paid a cigarette surcharge floor tax of $4,963.09 on July 15, 2009. Respondent also overpaid its floor tax for other tobacco products by $2,948.54 for a total of $7,815.83 in payments to the Department. That amount should be credited against any tax liability determined in this proceeding. The Department provided bank statements for Store 1 and Store 2 showing much larger monthly transactions than evidenced by the stores' sale of products. That fact raised a red flag justifying further investigation into Respondent's business. However, the discrepancy was explained by the fact that Respondent does a large amount of check-cashing business at its stores. The large bank transactions are not relevant to the issue in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, imposing a cigarette surcharge in the amount of $35,886 (thirty-five thousand, eight hundred and eighty-six dollars) against Respondent, Discount Zone, Inc., d/b/a Lakeland Discount Beverage, Inc., minus $7,815.83 already paid. DONE AND ENTERED this 12th day of May, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 12th day of May, 2011.
Findings Of Fact This case is presented for consideration based on the Notice to Show Cause filed by the Petitioner, Division of Alcoholic Beverages and Tobacco, against Rose L. Lee, who trades as Lee's Grocery. The exact details of the allegation are as found in the issue statement of this Recommended Order, which comments are hereby incorporated into the Findings of Fact. The Petitioner, Division of Alcoholic Beverages and Tobacco, is a division of an agency of State Government, namely, a part of the State of Florida, Department of Business Regulation. One of the functions which the Division of Alcoholic Beverages and Tobacco serves is to regulate those individuals who are licensed to sell alcoholic beverages in the State of Florida. The Respondent, Rose L. Lee, who trades as Lee's Grocery in a location at 2210 Central Avenue, Tampa, Hillsborough County, Florida, is a holder of an alcoholic beverage license issued by the Petitioner. That license number is 39- 0292 and all times pertinent to these proceedings the Respondent held such license. On May 23, 1979, Officer Donald Clifford Levengood went to the licensed premises. Officer Levengood is an employes of the Division of Alcoholic Beverages and Tobacco. The purpose of Officer Levengood's visit was twofold. First, Officer Levengood was there to make a routine inspection of the licensed premises, as is authorized by the statutes which regulate the sale of alcoholic beverages. The second reason that Officer Levengood went to the licensed premises was based upon certain information that he had obtained from an informer, to the effect that cigarettes not bearing the proper Florida tax stamp were sold in the vicinity of the Respondent's licensed premises. The testimony did not reveal that the Respondent had sold that class of cigarettes from her store prior to the officer's inspection. When Officer Levengood arrived at the licensed premises, he spoke with the store manager, one Columbus Lee, the husband of the Respondent. Lee had been running the store as manager for a considerable period of time, to include the month of May, 1979. In keeping with a checklist Officer Levengood began to check items against that list and in that Process found a pack of Pall Mall cigarettes in the licensed premises in a location where the cigarettes were being offered for sale. Levengood noted that this particular pack did not show a Florida tax stamp and after removing this pack from its location he proceeded to remove a number of other packs, all of which were missing the necessary Florida tax stamp. All total, there were fifteen packs in this location which did not evidence the proper Florida tax stamp. Those items were removed from the licensed premises and placed in a bag and those packs and bag were admitted in the course of the hearing as Petitioner's Exhibit No. 1. Further inspection by the officer uncovered eight cartons of Pall Mall cigarettes and those cigarette containers did not carry the necessary Florida tax stamp. Those cartons were consolidated into a bag and became the Petitioner's Exhibit No. 2. Admitted into evidence in the course of the hearing. (By agreement between the parties, the items of evidence were left in the custody and control of the District Office of the Division of Alcoholic Beverages and Tobacco located in Tampa, Florida.) Columbus Lee, when questioned about the origins of those packs of cigarettes that were missing the Florida tax stamps, indicated that a couple of days before the inspection he had purchased ten cartons of Pall Mall cigarettes from persons who were vending these cigarettes from their car at a location across the street from the licensed premises. The number of total packs of cigarettes was ninety-five (95), which is less than fifty (50) cartons. The Respondent, Rose L. Lee, was not in attendance at the licensed premises on May 23, 1979, at the time that the employee of the Petitioner discovered the unstamped cigarettes.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is recommended that the Respondent, Rosie L. Lee, be fined in the amount of Two Hundred Fifty Dollars ($250.00) and in the event that the Respondent fails to pay that fine within thirty (30) days of the date of the final order, that her license to sell alcoholic beverages be suspended for a period of thirty (30) days. DONE and ENTERED this 16th day of November, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Daniel Brown, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Rose L. Lee t/a Lee's Grocery 2204 Central Avenue Tampa, Florida 33602
Findings Of Fact Petitioner Eli Witt Company is a wholesale dealer in cigarettes in some eight states, including Florida. During the year 1976 and at the present time, Petitioner acts under the authorization of the Division of Alcoholic Beverages and Tobacco as an agent to buy or affix stamps pursuant to Section 210.05, Florida Statutes, and to collect and remit the cigarette tax to the Division after sale to various retailers in the State. Petitioner has some twenty-five branch offices located throughout the State who place orders for cigarettes with Petitioner on a daily basis. The cigarettes are invoiced by Petitioner to each branch and, upon arrival, the various branch offices affix the tax stamps upon the cigarette packages, primarily by means of a stamping machine. Each of Petitioner's stamping offices maintains its own records and files required reports, and is audited individually by employees of the Division. Each branch office is listed separately on a rider to the surety bond of Petitioner which is required under Chapter 210. Monthly checks are signed by each branch manager to remit tax collected to the Division. (Testimony of Hoyland) Since at least 1962, Petitioner had stamped cigarettes and collected cigarette taxes for the State of Florida. It had been allowed a discount as compensation for its services and expenses pursuant to Section 210.05 (3)(a), Florida Statutes, of 2.9 percent on the first two million cigarette packs stamped at each of its stamping locations. On March 1, 1976, the Division promulgated Rule 7A-10.25, Florida Administrative Code, which provided that a wholesaler who stamps cigarettes at more than one location would only be entitled to receive the maximum discount for a single agent doing business at a single location. Accordingly, although each of Petitioner's twenty-five stamping locations purchased more than two million stamps from the Division during the fiscal year July 1, 1976 through June 30, 1977, Petitioner retained the 2.9 percent discount as if it had done business at only one location. It filed a protest against the effect of the rule with the Division on July 1, 1976. A refund claim was filed with the State Comptroller on March 16, 1979, and denied on June 12, 1979. (Testimony of Hoyland, case pleadings, Exhibits 2- 3, 5) In 1977, the state legislature enacted Chapter 77-421, Laws of Florida, effective June 29, 1977, which provided in part in Section 8 thereof that: "Stamping locations approved by the division shall be responsible for computing the discount provided for each and every stamping location by ss. 210.05(3)(a), Florida Statutes . . ." The Division thereafter permitted discounts under the policy in effect prior to the promulgation of Rule 7A-10.25, but did not repeal the rule. On March 16, 1979, Petitioner requested the State Comptroller to refund the $64,800 paid under protest in fiscal year 1976-77 which represented the amount it could have retained as a discount if Rule 7A-10.25 had not been in effect. (Case pleadings, Exhibits 1, 4)
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.
The Issue At issue is whether respondent committed the offense alleged in the administrative action and, if so, what disciplinary action should be taken.
Findings Of Fact The offense At all times pertinent hereto, respondent, Rodi Enterprises Corporation d/b/a La Ferrolana Supermarket, held alcoholic beverage license number 23-00094, series 2-APS, for the premises located at 3380 N.W. 7th Street, Miami, Florida. Rolando Nunez is an owner and president of the licensee. On July 22, 1994, Leonard Del Monte, an investigator employed by the Division of Alcoholic Beverages and Tobacco, entered the licensed premises to conduct a routine inspection. At that time, Inspector Del Monte discovered nine packages of Benson & Hedges Menthol 100's cigarettes in a display rack over the counter, each of which bore a fraudulent tax indicia and on which the excise tax had not been paid as required by law. Each cigarette package contained twenty individual cigarettes, and such packages, considering their location, were obviously offered for sale to the general public. Apart from the nine packages of untaxed Benson & Hedges Menthol 100's, Inspector Del Monte discovered no other untaxed cigarettes on the premises, which, at the time, contained approximately 300 other packages of cigarettes, as well as approximately 300 cartons of cigarettes, for sale to the general public. Indeed, this is the first occasion in over fifteen years of operation that respondent has ever been cited with a violation, and the first time Inspector Del Monte has ever discovered a violation in the fourteen or fifteen years he has been inspecting the premises. The reason for the offense Ovilio Reyes is a long-time customer of respondent, and purchased a carton of Benson & Hedges Menthol 100's from a vendor who sells, among other things, cigarettes from a lunch truck outside the factory where he works. Since he did not like the menthol taste, Mr. Reyes prevailed upon Mr. Nunez, an owner and president of petitioner, to exchange the nine packages that remained from the carton he had purchased for nine packages of Winston cigarettes. Mr. Nunez noted the stamp on the bottom of the packages, assumed it was valid, and agreed to the exchange. Thereafter, Mr. Nunez placed the packages in the display rack for resale. Having considered the proof, Mr. Nunez' testimony that he believed the packages to carry an appropriate stamp and that he had no intention of selling untaxed cigarettes is credited. Indeed, had Mr. Nunez thought the stamp was a forgery, it is doubtful that he would have placed them in the display rack so that the stamp was plainly visible to a customer or, in this case, an inspector standing at the counter. Moreover, for the untrained, a cursory glance at the stamp would not raise a suspicion as to its validity. It is only when one is apprised, as through the proof in this case, that a tax indicia must be stamped in purple ink as opposed to the black ink used on the subject packages, that the stamp was not affixed evenly on the bottom of each package as it should be, that the stamps used are slightly longer than the standard stamp, that the scallops or ornamental edge around the rectangular stamp did not match the scallop of a valid indicia, and that the subject packages, upon close inspection, contained the phrase "Tax No," as opposed to the proper phrase "Tax Paid," that one would have cause to suspect the legitimacy of the stamp in question. Notable, petitioner has not shown by rule or otherwise that it has advised its licensees in general or respondent in particular of the factors that should be considered in assessing the authenticity of a tax indicia.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered finding respondent guilty of the offense as charged, and directing respondent to pay a $50.00 civil penalty and the excise tax of $3.59. 1/ DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of January 1995. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of January 1995.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, is the regulatory agency charged with enforcing beverage and cigarette tax laws. As part of its duties, Petitioner investigate the sales of cigarettes to minors (under age persons). Respondent, Workman, Inc., d/b/a Coastal Mart, is the holder of alcoholic beverage license number 39-02924, series 1-APS, and retail tobacco products permit number 39-04440. Respondent's licensed premises is located at 9931 North Florida Avenue, Tampa, Florida. Raymond Daoud is Respondent's sole stockholder and is a corporate officer. Pursuant to an anonymous complaint received by Petitioner during the spring of 1993, Special Agent Joseph A. Maggio directed investigative aide Kimberly Siebel to enter the premises of Coastal Mart and attempt to purchase cigarettes. Petitioner, during times material, utilized the services of investigative aides Kimberly Siebel and Stephanie Haley, whose birth dates are September 20, 1975, and January 24, 1978, respectively. Both aides were under the age of 18 during the spring of 1993. Investigative aides Siebel and Haley, are trained by Petitioner, when conducting investigations for the purchase of either beer or cigarettes, to enter premises and to truthfully tell their age when requested. They also provide proper identification to establish their age if requested to do so by the clerk when they are attempting to purchase beer or cigarettes. This procedure was used in this case by investigative aides Siebel and Haley when they purchased cigarettes from Respondent on May 20 and July 8, 1993. When investigative aide Siebel purchased cigarettes from Respondent on May 20, 1993, she had previously worked as an undercover operative for Petitioner approximately 30 times. On May 20, 1993, Siebel entered the premises of Respondent with Special Agent Maggio at approximately 9:25 p.m. Investigative aide Siebel approached the counter and ordered a pack of Marlboro Light cigarettes from the clerk who was later identified as Angela Schulte, an employee of Respondent. Ms. Siebel received a pack of Marlboro Light cigarettes as requested from Schulte without being asked for identification. She paid for the cigarettes and exited the store. Special Agent Maggio observed the purchase of cigarettes by Siebel from his position next in line behind her. When Siebel purchased the cigarettes from Schulte on May 20, 1993, she and Special Agent Maggio observed Respondent, Daoud, behind the counter when they entered the licensed premises. When Siebel and Maggio exited the premises, Siebel gave the cigarettes to Maggio. Maggio placed the cigarettes in a plastic bag and Siebel signed them. Maggio then sealed and placed them in the locked trunk of his vehicle until they were deposited in Petitioner's evidence file the following day. Approximately ten minutes after Siebel purchased the cigarettes and turned them over to Maggio, he reentered the premises, identified himself to Schulte, and advised her that she was under arrest for the sale of cigarettes to an under age person. Daoud was still inside the premises near the front counter. Special Agent Fisher, who is no longer employed by Petitioner, accompanied Special Agent Maggio inside the premises. Fisher completed a letter of warning and Daoud signed the warning. Fisher gave Daoud a copy of the warning as they left. On July 8, 1993, Maggio again directed investigative aide Stephanie Haley to enter Respondent's premises to attempt to purchase cigarettes. On July 8, 1993, investigative aide Haley was fifteen years old. Haley had on her person a Florida Drivers License showing her birthday to be January 24, 1978. On July 8, 1993, investigative aide Haley had previously acted as an undercover operative for Petitioner approximately 20 times. On July 8, 1993, Haley entered the premises of Respondent and approached the counter. She ordered a pack of Marlboro Light cigarettes from the clerk, who was later identified as Raymond Daoud. Daoud asked Haley for identification whereupon she presented her Florida Drivers License. Daoud examined the license and completed the transaction. Haley exited the premises and turned over the cigarettes purchased to Special Agent Maggio. Special Agents Maggio and Bock witnessed the transaction from a vantage point outside the premises. Maggio and Special Agent Bock then entered the premises of Coastal Mart and Bock identified himself and placed Daoud under arrest for the sale of cigarettes to an underage person. Daoud complained that he had been "setup" and that he remembered the girl, "thought she was young," and asked her for identification. Daoud observed Haley's license and thought that it had eighteen years of age on it. Special Agent Bock reminded Daoud that the license did not have an age on it. Daoud insisted that he thought the license had the date 1979 which would, of course, make investigative aide Haley, fourteen when she was, in fact, fifteen at the time. Petitioner has a policy of not letting undercover operatives reenter premises to allow licensed vendors to review items from undercover operatives such as their identification cards, etc., so as not to jeopardize them in future operations and for their own personal safety. Petitioner explained to Respondent that he could examine the identifying card (license) either during the hearing or in court. Respondent suspended Schulte for one week without pay for selling cigarettes to a minor. Respondent also verbally warned Schulte for selling cigarettes to a minor and reminded her that it was against company policy to do so. Schulte recalled that Respondent was "extremely mad" about the incident. Respondent would not knowingly sell cigarettes or alcoholic beverages to a minor. Respondent has operated his business for approximately three years, and this is the first infraction that he has received for the sale of beer or cigarettes to a minor.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent's alcoholic beverage license number 39-02924, series #1-APS, be assessed a $500.00 civil penalty for each count for a total civil penalty of $1,000.00. 1/ RECOMMENDED in Tallahassee, Leon County, Florida, this 4th day of April, 1994. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1994.
