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 presented is whether the $5.00 per gallon tax on perchloroethylene provided for in Section 376.75, Florida Statutes, is subject to Florida sales and use tax pursuant to Chapter 212, Florida Statutes. STIPULATED FACTS Petitioner is a for-profit Florida corporation that sells perchloroethylene and other dry-cleaning supplies to the dry-cleaning industry. It is a "wholesale supply facility" as that term is defined in Section 376.301(17), Florida Statutes. Petitioner is a member of the Florida Drycleaners' Coalition, a state-wide trade association whose members consist of the owners/operators of dry-cleaning facilities and wholesale supply facilities. In 1993 and prior to and during the 1994 Florida legislative session, the Florida Drycleaners' Coalition employed lawyers-lobbyists to suggest and seek passage of amendments to Chapter 376, Florida Statutes, commonly known as the Florida Dry-Cleaning Solvents Cleanup Program. In 1994, the Florida Legislature enacted Chapter 94- 355, Laws of Florida, which amended Chapter 376, Florida Statutes. Chapter 94-355 created Section 376.3078(2)(a), Florida Statutes, which provides that: All penalties, judgments, recoveries, reimbursements, loans, and other fees and charges related to the implementation of this section and the tax revenues levied, collected, and credited pursuant to ss. 376.70 and 376.75, and registration fees collected pursuant to s. 376.303(1)(d), shall be deposited into the Water Quality Assurance Trust Fund, to be used upon appropriation as provided in this section. Charges against the funds for dry-cleaning facility or wholesale supply site rehabilitation shall be made in accordance with the provisions of this section. Chapter 94-355, Laws of Florida, also created Section 376.75, Florida Statutes, which provides, in part, as follows: Beginning October 1, 1994, a tax is levied on the privilege of producing in, importing into, or causing to be imported into the state perchloroethylene (tetrachloroethylene). A tax of $5.00 per gallon is levied on each gallon of perchloroethylene when first imported into or produced in the state. The tax is imposed when transfer of title or possession, or both, of the product occurs in this state or when the product commingles with the general mass of this state. Petitioner's corporate secretary and 50 percent shareholder is David J. Pilger. He contributed financially to the employment by the Florida Drycleaners' Coalition of lawyers- lobbyists charged with seeking passage of amendments to Chapter 376, Florida Statutes, and met several times with those lawyers- lobbyists in Tallahassee. He was assured during those meetings that it was the opinion of those lawyers-lobbyists that there was no danger of Florida sales tax being applied to the $5.00 per gallon tax on perchloroethylene. The Department conducted an audit of Petitioner for the period of January 1, 1993, through January 31, 1998. At no time prior to the Department's audit of Petitioner's financial records did Petitioner receive from the Department materials of any kind indicating that Florida sales and use tax would apply to the $5.00 per gallon tax on perchloroethylene. The Department had, however, adopted emergency Rule 12BER94-2, effective October 1, 1994, and Rule 12B-12.003(2)(b), Florida Administrative Code, effective February 19, 1995. The 1998 Florida Legislature amended Section 376.75, Florida Statutes, by enacting Chapter 98-189, Laws of Florida, effective July 1, 1998, which added a sentence regarding the $5.00 per gallon tax, as follows: "This tax is not subject to sales and use tax pursuant to ch. 212." The Department has assessed and/or collected from certain taxpayers Florida sales and use tax on the sales price of perchloroethylene and the $5.00 per gallon tax on perchloroethylene. The sales and use taxes are deposited into the general revenue fund pursuant to Section 212.20(1), Florida Statutes. The $5.00 per gallon tax on perchloroethylene is deposited into the Water Quality Assurance Trust Fund, pursuant to Section 376.3078(2)(a), Florida Statutes. The Department issued its Notice of Proposed Assessment to Petitioner on October 22, 1998, assessing sales and use tax of $39,098.66, penalties of $19,549.64, and interest of $11,184.10 through October 22, 1998, with interest of $12.85 to accrue per day. The Department issued its Notice of Proposed Assessment to Petitioner on October 22, 1998, assessing indigent care surtax of $2,128.98, penalties of $1,064.48, and interest of $611.97 through October 22, 1998, and interest of $.70 to accrue per day. Petitioner charged its customers and remitted to the Department the $5.00 per gallon tax on perchloroethylene provided for in Section 376.75, Florida Statutes, but neither collected from the customer nor remitted to the Department sales and use tax on this $5.00 per gallon tax. The $5.00 per gallon tax collected by Petitioner from its customers was reflected at the bottom of Petitioner's invoices as "the ENVRN TAX." Petitioner charged its customers and remitted to the Department the excise tax provided for in Section 206.9935(2), Florida Statutes, but neither collected from its customers nor remitted to the Department sales and use taxes or indigent care surtax on this excise tax. This tax was reflected at the bottom of Petitioner's invoices as "PERC TAX." Petitioner does not contest the Department's assessment of sales and use taxes and indigent care surtax on the water quality tax provided for in Section 206.9935(2), Florida Statutes. Petitioner does not dispute that its sales to its customers during the audit period were paid for by its customers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered sustaining the assessment against Petitioner, together with interest, but compromising the entire penalty amount. DONE AND ENTERED this 22nd day of November, 1999, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 22nd day of November, 1999. COPIES FURNISHED: Jarrell L. Murchison, Esquire John Mika, Esquire Department of Legal Affairs The Capitol, Tax Section Tallahassee, Florida 32399-1050 Fred McCormack, Esquire Landers & Parsons, P.A. 310 West College Avenue Tallahassee, Florida 32301 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32314-6668 Joseph C. Mellichamp, III, Esquire Office of the Attorney General Department of Legal Affairs The Capitol, Tax Section Tallahassee, Florida 32399-1050 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue The issue is whether Respondent's permit as a retail tobacco dealer should be disciplined for the reasons set forth in an Administrative Complaint issued on May 6, 2014, by the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Division).
Findings Of Fact Background Since 1998, Respondent has operated a business under the name of Thompson Cigars at 5401 Hangar Court, Tampa, Florida. It holds retail tobacco permit number 39-05470 Series RTPD (Permit), which authorizes the sale, at a retail level, of tobacco products, including cigarettes, cigars, and other tobacco products. See § 569.003(1)(a), Fla. Stat. It has no disciplinary history with the Division. Although the Permit authorizes the sale of cigarettes, Respondent sells only cigars and other tobacco products. The Division concedes there is no statutory or rule requirement that Respondent maintain records for the sale of cigars and other tobacco products to customers in Florida or out-of-state. Also, unlike cigarettes, there are no taxes on the sale of cigars. Except for periodic audits of purchase records to ensure that Respondent is purchasing products from a licensed wholesaler and paying taxes on those purchases, the Division conducts no other audits of its records. Cigars make up the bulk of Respondent's sales. Ninety- nine percent of sales are made through the internet, mail order catalogs, and telephone to customers in all 50 states. The remaining portion of its business consists of retail sales at two small retail locations in Tampa. Count I In September 2013, the Division was contacted by the Idaho State Tax Commission requesting that the Division obtain records of all sales by Respondent of tobacco products to Idaho residents from July 2008 through September 2013. Specifically, the Idaho State Tax Commission wanted the names, addresses, and permit numbers of all Idaho entities to whom Respondent sold or distributed tobacco products during that five-year time period, including copies of sales invoices for more than 70 individuals. According to a Division special agent, this was the first time the Tampa office had been asked to obtain records on behalf of another state. Chapter 210, Florida Statutes (2014), consists of two parts. Part I relates to taxes on cigarettes while part II relates to taxes on tobacco products other than cigarettes or cigars. Section 210.161, found in part I, authorizes the Division to examine the "books, records, and accounts of any permittee." Relying on section 210.161, and solely for the purpose of assisting the State of Idaho, on October 23, 2013, an agent presented Respondent's Director of Finance and Accounting, Darren Hurd, with a form entitled "Record of Inspection." The form directed Respondent to take the following action: You are required to provide records of all sales of tobacco products made to persons or business entities in Idaho for the period of July 1, 2008 until the present. The records must be produced to the Division no later than November 1, 2013. Please produce the requested records to C/O Special Agent Robert Jones [at the Tampa District Office]. Besides presenting the written form to Mr. Hurd, the agent explained to him why the request was made and the records that he should produce. The Record of Inspection is normally used by the Division in conjunction with a compliance audit. At hearing, the agent acknowledged this was not a compliance audit to determine if Respondent was operating pursuant to the law. Rather, the request was made to assist the State of Idaho. Florida Administrative Code Rule 61A-2.019, entitled Approved Forms, lists more than 200 approved forms used by the Division. The Record of Inspection is not on the list. Respondent contends the form is an agency statement of general applicability that requires the production of records for inspection. Because the form is not listed as an approved form in rule 61A-2.019, Respondent argues that the document is an unadopted rule that cannot be used in this case to compel production of the records. See § 120.57(1)(e), Fla. Stat. Assuming that the Division had authority to examine the records, the use of the form was unnecessary. This is because there is no statute or rule that prohibits the Division from orally requesting that records be produced for inspection. Therefore, reliance on the form was unnecessary, as is the resolution of the issue of whether the form is an unadopted rule. Upon advice of counsel, Mr. Hurd declined to produce any records citing privacy concerns for Respondent's out-of- state customers and the Division's lack of statutory authority to examine the records. Mr. Hurd noted that the sales records for customers contain personal information, including their name, address, birth date, telephone number, and credit card number. Besides the privacy issue, Mr. Hurd explained that over the last 17 years, the firm has sold tobacco products to literally "millions" of customers throughout the United States. There is no Division requirement that Respondent maintain records of these sales for state auditing purposes, and records are kept on an antiquated tape system that is periodically purged. Mr. Hurd added that even assuming the relevant tapes exist, it would be an "overwhelming" burden and take countless man hours for the small firm to manually restore backup tapes and attempt to extract records of retail sales (out of millions of customers) for a particular time period for one state. Respondent's bottom line is that the records do not exist, and even if they did, the Division lacks authority to request them. On the other hand, the Division maintains that if Respondent keeps records of sales for any purpose, even non- regulatory, it must make a search, no matter how extensive, to determine if the Idaho records exist. If they do, it must produce them; if they do not exist, the exercise in collegiality with Idaho ends.1/ When the records were not produced, the Division issued an Administrative Complaint charging Respondent with violating section 210.161. A Division witness admitted that the statute "is kind of vague" on whether the Division can legally demand the records, and to that end, one of the purposes of this proceeding is "to try to determine if" it has that authority. Thus, Count I essentially poses the question of exactly how broad the Division's inspection authority is. Count II While pursuing the records, the agent took steps to verify whether there is an issue regarding "an undisclosed interest in the ownership [of Respondent]," that is, to ascertain whether there are owners of the corporation that have not been disclosed to the Division. This is a routine verification made during enforcement investigations. As confirmed by the agent at hearing, the focus of this inquiry is on undisclosed corporate owners rather than corporate officers. To make this determination, the agent compared the officers, but not owners, listed in Respondent's 2013 Annual Report filed with the Division of Corporations with those names shown on its 1998 permit application. The Annual Report lists a corporation's officers, directors, and registered agent, but not its owners or shareholders. It named Carlo Franzblau, Alix Franzblau, R.M. Franzblau, Jo Z. Franzblau, and Colm Conway in the Officer/Director Detail section of the report. On the other hand, the 1998 permit application listed as owners Carlo Franzblau, Jo Franzblau, Robert Franzblau, and Alix [D]orr. R.M. Franzblau (listed in the Annual Report) and Robert Franzblau (listed in the permit application) are the same individuals. Alix Franzblau, a female, was married when the 1998 application was filed and used her married name "Dorr." She is now single and uses her maiden name, Franzblau. Mr. Conway has no direct or indirect financial interest in the corporation and is not involved in the decision-making process. He was listed in the Annual Report only because he currently serves as Respondent's vice president-finance and chief financial officer. In sum, Respondent is and always has been a family-owned corporation that disclosed all persons having a direct or indirect financial interest in the business. Count II alleges Respondent violated section 569.003(1)(b) by "fail[ing] to submit to the [Division] a sworn application" stating that Colm Conway and R.M. Franzblau had a direct or indirect financial interest in the corporation. Because it later learned that Robert Franzblau and R.M. Franzblau are the same individuals, the Division now contends that the omission of Mr. Conway's name is the only statutory violation. Section 569.003(1)(b) requires that a corporation applying for a new permit file a sworn application "set[ting] forth the names and addresses of the principal officers of the corporation." Because a new application is not at issue here, and the statute requires disclosure of the principal officers only, section 569.003 cannot support the charge. Assuming arguendo that it does, there has been no change in corporate owners since the 1998 application was filed. Finally, the Division admits that there is no rule or statute that specifically requires a corporate licensee to file the updated information referred to in Count II.2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Alcoholic Beverages and Tobacco enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 29th day of May, 2015, in Tallahassee, Leon County, Florida. S R. ALEXANDER 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 29th day of May, 2015.
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative action and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent, Ramesh Gordon Kowlessar, held license number 16-12937, series 2APS, authorizing the sale of alcoholic beverages (beer and wine) for consumption off the premises known as K's American & West Indian Grocery & Food, located at 4486 West Hallandale Beach Boulevard, Pembroke Park, Florida (hereinafter "the licensed premises"). On March 25, 1997, Sergeant Carol Owsiany, an agent with the Division of Alcoholic Beverages and Tobacco, and Michael Kaufman, a special agent with the Division of Alcoholic Beverages and Tobacco, operating undercover, visited the licensed premises to investigate a complaint that Respondent was selling alcoholic beverages for consumption on the premises (a practice not permitted by Respondent's license). Sergeant Owsiany and Agent Kaufman entered the premises at or about 10:15 a.m., and were greeted by Respondent who, after assuring the agents that they could dine on the premises, seated them at the counter. Sergeant Owsiany ordered a meal of curry and rice, and Agent Kaufman requested beer with the meal. The Respondent directed Agent Kaufman to the beer cooler. Agent Kaufman selected two cans of "Budweiser" beer (an alcoholic beverage) from the cooler and returned to the counter, where he handed one beer to Sergeant Owsiany. The agents opened their respective beers, and consumed a portion of the beer while seated at the counter in the presence of Respondent. Following service of her meal, Sergeant Owsiany consumed a small portion of food, and requested that the remainder be packaged to go. The agents then proceeded to the check-out counter with the two open and partially consumed beers, as well as the packaged meal. At the counter, the agents observed 52 packages of unstamped, non-Florida-tax-paid cigarettes offered for sale. Sergeant Owsiany paid for her meal and the two beers, and the agents exited the building.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the charges set forth in the Administrative Action; imposing a civil penalty in the total sum of $1,000 for such violations, subject to Respondent's option to substitute a period of suspension in lieu of all or a portion of the civil penalty; and, requiring Respondent to pay to the Department excise taxes in the sum of $17.63. DONE AND ENTERED this 22nd day of April, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1998.
The Issue The issue is whether respondent's alcoholic beverage license should be disciplined for the reasons stated in the notice to show cause.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Santos Navarro Osornio (respondent or Santos), held alcoholic beverage license number 21-00850, series 2-COP, issued by petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division). Respondent operated a bar known as Santos Corner or The Pink Panther located at 190 South Third Street, Immokalee, Florida. Respondent's license authorized him to sell beer and wine for consumption on the premises and package sales for off-premises consumption. Respondent has operated the lounge since October 1987. As a licensee, respondent's establishment was subject to inspection during regular hours of operation. The Division conducts spot checks of such establishments at random in addition to checking establishments that have been the subject of complaints. It is noted that when respondent was issued his license in October 1987, he signed a statement authorizing Division agents to inspect and search the licensed premises during normal business hours without a search warrant. In early May 1989 petitioner's Fort Myers district office received a request from other area law enforcement agencies to participate in "Operation Fast Track", an operation planned and coordinated by the United States Department of Immigration and Naturalization Services (INS) in an effort to apprehend illegal aliens residing in the Immokalee area. Among other things, the operation called for a raid on respondent's licensed premises. Besides INS agents, other law enforcement agencies participating in the raid were the "SWAT", team of the Collier County Sheriff's office, the fire marshal's office and the county health department. Petitioner agreed to send agent Thompkins, a certified law enforcement officer, whose sole purpose was to inspect respondent's premises to ascertain if the licensee was in compliance with alcoholic beverage and tobacco laws and regulations. The raid took place around 11:30 p.m. on Friday, May 12, 1989. The crowded and noisy bar was then filled with more than one hundred customers, primarily Hispanic, who were enjoying entertainment provided by a popular Spanish band from Homestead, Florida. The events which occurred after the agents stormed the premises are sharply in dispute. In reconciling this conflicting testimony, the undersigned has accepted the more credible and persuasive testimony and embodied this testimony in the findings below. After entering the bar through the front double doors, and going around the partition which lies immediately in front of the doors, the agents observed a bandstand, tables, booths and dance floor to the immediate right, a horseshoe shaped bar to the front, a long unused bar to the left, and, in the upper left rear of the bar, five pool tables sitting between the unused bar and the horseshoe bar. A diagram of the bar received in evidence as respondent's exhibit 7 provides a more precise description of the premises. A SWAT team and a single INS agent first entered the front doors yelling "police" and "immigration" in English and Spanish. They did not have a search warrant. The SWAT team members wore their uniforms and bullet-proof vests. They also carried billy clubs and weapons. The attire of the INS agent is unknown although all members in the operation were expected to wear something which identified them as law enforcement officers. The first group's mission was to secure the area, line the patrons against the wall and pat them down. The INS agent then checked the patrons for citizenship documents. After the first group of officers entered, they were followed by another group of deputies and other agents, including agent Thompkins, who wore a new dark blue t-shirt with the word "POLICE" encaptioned in bold yellow letters on its back. In smaller letters beneath that word were the words "Division of Alcoholic Beverages and Tobacco". As Thompkins entered the front door he yelled "police" and did so a second time once he entered the bar area. Shortly after entering the premises, Thompkins observed deputy sheriff Joe Jones talking with a lady behind the horseshoe bar. The lady was Olga Candia, who lived with Santos in an adjoining apartment. Candia, a woman of small stature, was dressed in a red dress and high heel shoes and occupied a chair in the entrance way to the bar. Jones asked Candia to come out from behind the bar so that he could secure the bar area. She refused because, in her words, she "wasn't no wetback" that was going to be lined up against the wall and patted down. After Candia refused several requests to move, Jones advised Candia that she would be arrested for obstruction of justice if she did not comply with his request. At that point Candia started for the back door, but after taking only a few steps, Jones pulled her face down on the floor between the bar and pool table. As Jones attempted to pull her arms behind her back to handcuff her, Candia began to squirm. Agent Thompkins then assisted Jones in holding Candia down while the handcuffs were placed on the detainee. It should be noted that Thompkins is a rather large man who stands over six feet, two inches tall and weighs three hundred plus pounds. Candia immediately began screaming "Santos" at the top of her voice. While the above events were occurring, Santos, who was described by one officer as being "very cooperative", had complied with a request of another deputy to install a light in the bandstand area. The purpose of this was to provide more light in the dimly lit lounge. From that vantage point, Santos could not see Candia being held on the floor since the horseshoe bar stood around four feet high and was between him and the area where she was being held. However, over the turmoil and yelling in the bar he heard the screams of his girlfriend and proceeded as quickly as he could towards the bar area bent on furnishing Candia assistance. He could not run because of a gimpy leg. After he rounded the horseshoe bar he ran into the back of Thompkins, who was in a bent over position holding Candia down. Thompkins described the bump as having a "battering ram effect" on him and caused him to "stumble". However, he did not lose his grip on Candia, probably because Santos weighs no more than half as much as Thompkins and is much shorter. To illustrate the confusion and conflicting versions of events surrounding the alleged battery, deputies Jones and Strickland recalled seeing Santos flying through the air into Thompkins, jumping on his back and placing his arms around Thompkins' neck. However, Thompkins did not recall anyone hanging onto his back and placing their hands around his neck. Instead, he remembered only that someone or something had rammed his back. Two defense witnesses disagreed and contended that respondent never touched Thompkins but was knocked to the floor by a deputy before he reached Thompkins and Candia. Santos also related this version of events. It is found, however, that as Santos rounded the bar at a quickened pace, he accidentally ran or was pushed into Thompkins' back and was thereafter immediately secured on the floor with handcuffs by deputies. It is found that Santos did not intend to batter the officer nor did he know that the person he was running or falling into was a law enforcement officer. Santos was then arrested and charged with felony counts of battery and obstructing justice. A county judge later reduced those charges to a misdemeanor. After the above events occurred, Thompkins conducted an inspection of the licensed premises but found no serious violations of alcoholic beverage and tobacco laws or agency rules. Except for the pending charges, Santos has never been disciplined for a violation. Finally, numerous patrons of the bar were arrested the evening of May 12 for being in the country illegally and were taken to an INS detention center for further processing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that respondent be found not guilty of violating the cited statutes and that the notice to show cause be DISMISSED with prejudice. RECOMMENDED this 22nd day of May, 1990, in Tallahassee, Florida. DONALD ALEXANDER 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 22nd day of May, 1990.
Findings Of Fact At all times pertinent to the allegations contained in the Notice To Show Cause, Respondent was issued Florida Alcoholic Beverage License 2APS Number 66-248 for the Plaza Grocery located at 2233 North 25th Street, Ft. Pierce, Florida. The parties stipulated, and it is found, that Respondent had the cigarettes as alleged in the Notice To Show Cause in the quantities referred to and that said cigarettes were, in fact, untaxed. The parties further stipulated that on September 15, 1983, during a search conducted by officers of the St. Lucie County Sheriff's Department and the Division of Alcoholic Beverages and Taxation in Respondent's premises, the officers found in the retail rack behind the counter, twenty (20) packages of Salem Menthol 100's, and nine (9) packages of Salem Menthol Light 100's, that were untaxed. The nine (9) packages indicate that one package out of a carton of ten (10) packs was missing. In addition to the above, officers found in a box behind the counter, three (3) cartons of Salem Menthol Light 100's and four (4) cartons of Salem Menthol 100's; all untaxed and mixed in the box with cartons of taxed cigarettes. In a storeroom off from the sales area, officers found fifty-one (51) cartons of Salem Menthol Light 100's and nineteen (19) cartons of Salem Menthol 100's. Detective Alfonzo Washington who has served in that capacity for two (2) years and for the Sheriff's office in other capacities for ten (10) years has known Respondent for twenty- five (25) years. On September 15, 1983, he received a report from a friend who runs a convenience store in that area that someone had offered untaxed cigarettes for sale. Because of his relationship with Respondent, Officer Washington went to the Respondent's store to warn him. Arriving sometime between 11:30 a.m. and noon, Washington talked with Respondent outside the store near his unmarked police car. Washington was in the car and Respondent was outside it. He advised Respondent that if anyone tried to sell him cigarettes to contact him; that he wanted Respondent to, "help me." Washington did not ask Respondent to buy the cigarettes if offered: only to be a lookout and to contact him if anyone offered to sell. Whether there was an actual request or not, it is clear that Respondent thought there was and he acted on what he considered to be the request of a bona fide law enforcement officer. A finding of this nature was subsequently made in Respondent's criminal trial in the same facts and while not binding in this hearing, that court order is of some probative value. Respondent did not, however call Washington when, as it appears, an individual did in fact offer to sell him cigarettes, the cigarettes in question here, later on in the day. Respondent, Boatwright, in addition to running the Plaza Grocery Store, a convenience store which sells mostly dried and prepackaged foods, wine, beer, and cigarettes, operates a fruit harvesting and hauling business. He confirms Washington's story that he was leaving his store approximately noon on September 15 when Washington approached him and asked him if anyone had offered to sell him cigarettes. Boatwright also confirms Washington's testimony that he explained what had happened but contends that Washington asked for his help in solving the case. Respondent agreed that Washington left after a very short conversation and no detailed instructions were given. Respondent then ran some errands, going to the bank, and to a car dealership, arriving back at the grocery store at approximately 2 or 2:30 p.m. While he was working on some equipment in his repair shop in back of the store, a black male who he knew as "Peanut" drove up in a blue and white Cadillac. Peanut asked Respondent if he was interested in buying any cigarettes. This immediately rang a bell with Respondent who then asked Peanut how many he had and how much he wanted. Peanut said he had about eighty (80) cartons and was willing to sell them for $400.00. When Respondent asked if he would take less, Peanut, after talking with the other individual in the car, agreed to sell the entire lot for $300.00. At this point, Respondent advised Peanut he would have to come back later in the day because he, Respondent, did not have that much money with him. If fact, Respondent did have $300.00 with him at the time and contends he used this subterfuge only to allow him time to attempt to get Washington to the store. After talking with his friends in the car, Peanut agreed to come back later and he, Peanut, took the cigarettes which were in unopened cartons packed in two (2) brown boxes, into the store and in the storeroom where Respondent told him to put them. This was approximately 3:00 p.m. in the afternoon. The cigarettes were placed just inside the storeroom door next to some groceries, completely out in the open. After depositing the cigarettes, Peanut indicated that he would be back between 4:00 and 5:00 p.m. Respondent contends that he expected Officer Washington to come by on his way home from work somewhere around 4:00 p.m. Washington agreed that he, usually, got off work and passed by the Plaza Grocery on his way home and that he sometimes stopped in to talk with Respondent. However, while Washington indicated he failed to come in more than he stopped in, Respondent contends that Washington stopped in more often than not and that it was because of this that he did not call Washington intending to see him on the way home. He indicates that if Washington went by without stopping, he was going to call Washington at home and have him come over to be there when Peanut returned. On balance, it would appear Respondent is in error here. As it happened, however, approximately a half an hour after Peanut left, beverage agents and sheriff's department detectives, as their last stop in their check of several area convenience stores for the stolen cigarettes, came into the store while Respondent was outside talking. The agents came up in a brown car and Respondent thought it was relating to fruit harvesting. Respondent went inside the store to see what the agents wanted and found that several of the officers, including Officer White, had already gone behind the counter to the cigarette rack. At this point Respondent asked what was the problem. White replied that he wanted to check cigarettes and when White asked who Respondent bought the cigarettes from, Respondent who did not know who any of these people were replied, the Eli Witt Company. When one detective asked him if he had any more cigarettes, he said "yes" and attempted to show him where the cigarettes were in the storeroom. Ultimately the detectives advised Respondent of his right to remain silent, but he waived this right and fully explained what had happened. When Investigator White, a new beverage agent with whom respondent was not familiar, found cigarettes that were untaxed in the cigarette retail rack, he advised Respondent of his testimonial rights and Respondent indicated a desire to make a statement. In this statement, respondent reiterated the story outlined above to the effect that Washington had approached him earlier in the day to solicit his help in watching for untaxed cigarettes. He then went on to indicate the story of how Peanut had come and left the cigarettes there. September 15, 1983 was on a Thursday. The following Sunday, Investigators Young's wife called White and indicated that Respondent had called her in an effort to talk to Young. White called Respondent back and was told by Respondent that Peanut had come back that day in another car to threaten him into either returning the cigarettes or paying for them. Respondent advised White that he had a partial tag number and a description of the vehicle. He also advised White that he had reported this to the Sheriff's Department through the 911 number. At this, White advised Respondent to keep an eye out and to call if anything else developed. The cigarettes in the retail rack were in plain view and were not hidden as were the cigarettes in the box behind the counter. Investigator White confirms Respondent's story that the cigarettes in the storeroom were not hidden and were left out in the boxes with the end labels of each carton showing. This was somewhat contradicted by the testimony of Petitioner's rebuttal witness, Detective Williams from the County Sheriff's office, who stated that the cigarettes were somewhat concealed. Nonetheless, it would appear that the cigarettes were not concealed and there is no evidence to show that Respondent attempted to hide the cigarettes or make them unavailable to the investigating officers. In fact, it appears the cigarettes were where Peanut had left them with the exception of those few cartons taken from the storeroom and put into the retail rack behind the counter. In that regard, Respondent denies having moved the cigarettes and contends his five (5) employees denied moving them. It is clear that they were moved, however, more likely by an employee who now denies it.
The Issue Should the Petitioner impose discipline against Respondent, holder of an alcoholic beverage license, for violations of laws pertaining to that license?
Findings Of Fact At times relevant to the inquiry Respondent held alcoholic beverage license no. 47-00190, series 4COP, issued by Petitioner. This license allowed Respondent to sell alcoholic beverages at the licensed premises known as Kent's Northside Lounge and Restaurant, located at 1133 Thomasville Road, Tallahassee, Florida. Respondent was the sole holder of that license. Respondent continues to hold the license. Beginning January 1997, and ending April 25, 1997, Petitioner, together with other law enforcement agencies, conducted an investigation of the licensed premises to determine if violations of law involving illegal narcotics were occurring. While involved in this investigation, Petitioner also investigated alleged violations involving tobacco. On January 7, 1997, Gordon Chesney entered the licensed premises. He was acting in the capacity of a paid law enforcement undercover operative. He was not a sworn law enforcement officer. Once in the bar he made the acquaintance of a person identified as "Wild Bill." Wild Bill refers to Bill Ferris, Respondent's bartender. Chip Kirby, another bartender, was also in the licensed premises. When Chesney introduced himself to Ferris, Chesney wanted to know "where the action is" in town. In conversation Chesney asked Ferris "Does it ever snow down here?" This reference was a slang term for cocaine. Ferris responded that "it would snow in a few days." This comment referred to the availability of cocaine. Chesney told Ferris he would like to get some "snow." After their initial meeting, Chesney telephoned Ferris at the bar. Ferris told Chesney to come to the bar. Chesney returned to the bar at around 6:30 p.m. on January 9, 1997. Once in the bar Chesney made contact with Ferris. Ferris took Chesney over to a booth in the premises. At this time there were customers in the bar, approximately ten to fifteen people. The other bartender, Kirby, was also in the premises. Respondent was not in the premises. Ferris referred to "she is not here yet," meaning the person who was supposed to deliver cocaine to Ferris. Ferris then invited Chesney to the bathroom in the premises. Chesney showed Ferris money he had brought to purchase cocaine. Ferris indicated that there wasn't enough money. Chesney promised to bring more money later. Chesney went away from the premises to obtain more money and returned to the bar at around 8:30 p.m. When Chesney first arrived at the bar on January 9, 1997, Ferris had not been on duty as a bartender. When Chesney returned to the bar, Ferris was on duty. When Chesney returned, he told Ferris that he was ready. Ferris replied that "she" would be here any minute. A girl then came into the bar. Ferris talked to her. Ferris then came to a booth and invited Chesney to go outside with Ferris. While at the booth, Ferris asked Chesney if he had the rest of the money. They went outside. Chesney gave money to Ferris. The money given to Ferris was in addition to the money which Chesney had given Ferris in the bathroom. Ferris gave Chesney a small baggie containing what was taken to be cocaine. The exchange of additional money and the baggie was made right outside the door of the premises. Chesney turned over the item that he had purchased from Ferris to Officer Kevin Taylor of the Tallahassee Police Department. In turn Detective Louis Donaldson of that department took custody of the item. On January 15, 1997, Chesney returned to the bar. His purpose was to obtain additional cocaine. Once in the bar Chesney contacted Ferris. Ferris was working behind the bar at the time. Chesney told Ferris he wanted to "get a quarter." This refers to a quantity of cocaine. Ferris told Chesney that "she will be here any minute." Chesney waited about half an hour. Then a girl came in the back door and talked to Ferris. Then Ferris went back to an area of the bar which is a restaurant. In about five minutes Ferris came out with a Styrofoam soup cup. He said "here is your soup." Chesney said "okay." Chesney gave Ferris $300 and walked out of the bar. On this occasion Respondent was in the premises seated at a table behind Chesney. That location was about eight feet from Chesney's location. Other people were seated with the Respondent. On this occasion music was playing. Sometimes the music was loud. Sometimes the music was not loud. Chesney cannot recall whether the music was loud during conversations held with Ferris concerning the purchase of the cocaine. But the conversation between Chesney and Ferris was in a normal tone. Once outside of the premises, Chesney turned his purchase over to an officer. Again Detective Donaldson took custody of the item. Detective Donaldson prepared a property receipt for those items seized on January 9 and 15, 1997, that were purchased by Chesney. The items were temporarily held in custody by the Tallahassee Police Department. Those items were then forwarded to and tested by the Florida Department of Law Enforcement, who having analyzed the items, discovered the presence of cocaine. On January 22, 1997, Chesney reentered the licensed premises with Officer Alan Wayne Davis, Jr., who worked for the Petitioner in an undercover capacity. Chesney introduced Davis to Ferris. Ferris was working as a bartender at that time. Specifically Ferris was serving beer and mixed drinks, and taking money. Because Davis was acting in an undercover capacity, he did not tell Ferris that he, Davis, was a law enforcement officer. Davis never revealed his position as a law enforcement officer to any persons who were the subject of the investigation. In pursuit of his undercover role, Davis told Ferris that he was a member of a motorcycle club. On this date a conversation held in a normal tone involved the subject of cocaine. This refers to a conversation between Davis and Ferris. Davis returned to the bar alone on January 23, 1997. He contacted Ferris who was working as a bartender. They discussed a prior cocaine deal between Ferris and Chesney in a normal tone. On January 23, 1997, Davis met Samuel H. Lewis at the bar. Davis was introduced by Ferris. Lewis was taking bets on the upcoming Superbowl football game. The bets were premised upon placing projected scores on a paper square for a cost of one dollar. The winner was to be determined by the individual who placed the bet and guessed the total score. The game was a game of chance, not skill. Davis gave Lewis five dollars to participate in the betting pool. An envelope of bets containing fifty-seven dollars was available when Lewis began to collect bets. Lewis received about twenty additional signatures (twenty dollars) in the bar representing individual bets. The overall pool had one hundred squares. Respondent was not at the bar on January 23, 1997, when the football pool was held. On January 23, 1997, Davis met Robert Strauss, Respondent's son. Robert Strauss was an employee at the bar. In conversation Davis was asked what kind of business he was in. Davis responded that he was in the business of making money. Before Davis met Robert Strauss, Ferris had asked Davis if Davis sold cigarettes, in that, as Ferris described the matter, Robert Strauss was always looking for a good price on cigarettes. Davis had answered Ferris in the affirmative. This led to the introduction to Robert Strauss. Conversations about cigarettes were open, in normal tones. In discussion Robert Strauss asked Davis if the cigarettes that Davis had for sale had stamps on them. Davis replied in the affirmative. On the other hand, Davis commented to Robert Strauss that the cigarettes were "so hot that you could feel it." Davis intended by his remarks to indicate that the cigarettes that he had were stolen. That intent would create the most likely inference to be gained from Davis' remarks. Davis did not indicate that he was a licensed wholesale cigarette distributor on that occasion or any other occasion. Through conversation Davis and Robert Strauss arrived at a price of eight dollars a carton for cigarettes, a price below the expected value of that merchandise. Robert Strauss asked Davis to bring him a case of cigarettes next Wednesday. Davis agreed to that request. When Robert Strauss made the overture to Davis concerning the purchase of cigarettes, Davis was not in control of cigarettes. To further the investigation, Petitioner purchased cigarettes from a wholesaler, SuperValue Warehouse. Petitioner caused stamps to be attached to those cigarettes. Those stamps were out of circulation and not involved in normal commerce. By this attachment, the impression that was created was that the cigarettes were properly stamped. The cigarettes were then turned over to Davis to be used in furtherance of the investigation. In a later conversation between Ferris and Davis on January 23, 1997, the subject of cocaine was discussed. This conversation took place in the bar. Davis told Ferris that he might want cocaine at a later time. Ferris invited Kirby into the conversation. Kirby tried to tell Davis what a good deal Kirby and Ferris could get Davis on some "coke." This refers to cocaine. At that point in time, Kirby was working at the bar. The price discussed was $750 for a half ounce of cocaine. Kirby indicated that the cocaine would be available Friday and that Davis could come back and purchase the cocaine from Kirby and Ferris. The conversation about cocaine was openly stated. Davis returned to the bar on January 29, 1997. Davis made contact with Ferris who was tending bar, and had a conversation about Davis' failure to purchase cocaine, causing Ferris and Kirby to be "stuck with the coke," trying to sell it to someone else. This conversation was held in a normal tone of voice. Robert Strauss was not at the bar on that occasion. Nonetheless, Ferris told Davis that, Robert, referring to Robert Strauss, wanted to purchase cigarettes. Ferris indicated he would contact Robert Strauss and return to purchase cigarettes from Davis. Ferris then made a telephone call. Ferris then purchased cigarettes from Davis for $100 in return for twelve cartons of Winstons. Those cigarettes sold by Davis on this occasion, and on other occasions, were the cigarettes that Petitioner had placed the out-of-date stamps on, after obtaining the cigarettes from the wholesaler SuperValue Warehouse. Davis returned to the licensed premises on February 5, 1997. While at the bar, Robert Strauss walked out of another part of the bar and yelled to Davis, "Hey, cigarette man, I will be right out." Robert Strauss was approximately twenty feet away from Davis when he made those remarks. Respondent was sitting in one of the booths of the bar at the time. On this visit to the bar, Davis engaged in a conversation with Ferris. Ferris was not on duty at that time. Then Davis spoke with Robert Strauss. Robert Strauss asked Davis what type of cigarettes Davis had brought. Davis replied that he had brought thirty cartons of Marlboro Lights and a Phillieblunt box full of cigars. Robert Strauss asked if the price of the cigarettes was still eight dollars a carton. Davis said yes. The cigarettes were delivered from Davis to Robert Strauss across the counter after Davis obtained the cigarettes from his vehicle. At that time patrons were at the bar. Robert Strauss paid Davis $240 for the cigarettes from the cash register at the bar, by openly handing Davis the money. Robert Strauss then took the cigarettes to a back portion of the premises. Davis purchased one pack of Marlboro Lights back from Robert Strauss for a price of three dollars out of the cigarettes that had just been sold from Davis to Robert Strauss. On this date, Davis also told Robert Strauss that the cigarettes "were so hot that they wouldn't even have to be lit," in conversation concerning the purchase of additional cigarettes beyond that point in time. At the bar, Davis then engaged in a conversation with Ferris about cocaine in a normal tone. Davis returned to the bar on February 12, 1997. At that time Ferris was working behind the bar, Robert Strauss was also on the premises in the kitchen area. Davis told Robert Strauss that he had thirty cartons of Winstons. Robert Strauss told Davis he would give Davis five dollars per carton for all thirty. They agreed. Davis sold Robert Strauss thirty cartons for five dollars each. Davis brought the cigarettes in from his car in a large box and placed them on the edge of the bar in making the exchange. Twelve to fifteen patrons were in the licensed premises. Robert Strauss took the money to pay for the cigarettes from a bank bag near the cash register. The transaction was openly conducted. On that same date Davis discussed with Ferris the purchase of cocaine while Ferris was working behind the bar. The amount discussed was an ounce. To facilitate the purchase, Ferris gave Davis his work and home telephone numbers; these included the number for the bar. Davis returned to the bar on February 19, 1997. Davis contacted Ferris who was working as a bartender. Patrons were in the bar at that time. Ferris asked Davis if Davis had brought the cigarettes for Robert Strauss. Kirby came over to Davis and asked if Davis was still looking to get an ounce, referring to the purchase of cocaine. Davis said yes. Davis gave Kirby $1,400 in cash in furtherance of a purchase. Kirby counted the money while at the bar without attempting to disguise his activities. Kirby put the money in his pocket and went to the business phone in the premises and made a call. Kirby then returned and told Davis he couldn't contact his main supplier, but that he had another source he could get it from who was in the bar. This discussion was held in a regular tone of voice. Kirby left the bar and then returned. Davis was instructed to follow Kirby and Ferris to a back room. Davis followed them to a storage room. Kirby then pulled a bag out of his shirt represented to be cocaine. Davis weighed the substance on scales. While this transaction took place, the parties were concealed by a door. The substance weighed approximately an ounce. When Davis left the licensed premises, he turned the substance over to a case agent for the Drug Enforcement Administration (DEA). On the same day, Davis sold Robert Strauss thirty cartons of cigarettes delivered to Ferris after Robert Strauss handed Ferris $100 to give to Davis. Davis delivered the cigarettes in a box from the trunk of his vehicle and placed them on the top of the bar during the exchange. Robert Strauss had obtained the money from a bank bag. On February 25, 1997, Ferris paged Davis. Davis called Ferris and Ferris told Davis he would give Davis an ounce of cocaine for $1,320. Davis said he wanted three ounces. An arrangement was made to meet on February 27, 1997, at the bar to carry out the transaction. On February 27, 1997, Davis returned to the bar in the company of a law enforcement officer, Agent Scirpan of the DEA. Davis met with Ferris after walking in the bar. Ferris told Davis to follow him outside. Ferris questioned Davis concerning the possibility that Davis was a cop or affiliated with law enforcement. Davis did not acknowledge his status as a law enforcement officer. They then went to Ferris' truck to count the money that would be used in purchasing cocaine. Respondent was seated at a table in the premises when Davis and Ferris left the premises to go to Ferris' truck. The truck was located by the side of the bar. Davis gave Ferris $4,000. They then went inside the bar. Ferris made a telephone call from the business phone in the premises. Ferris then exited the bar. While in the bar, Davis observed a girl sitting at the bar rolling what appeared to be a cannabis cigarette, known by its appearance to Davis to be cannabis, based upon his experience as a law enforcement officer. Robert Strauss was there at that time two to three feet away. Robert Strauss made no attempt to confront the patron concerning this practice. Davis ordered a pack of Marlboro Lights from the bartender and paid for them. To get the cigarettes, Respondent had to produce the keys to the storage room to obtain the cigarettes purchased. The cigarettes that Davis purchased bore the out-of-date stamp involved with the cigarettes that Davis had sold to Robert Strauss. On that same date an unidentified white male came in offering to sell cartons of cigarettes. The unidentified male was trying to sell cigarettes for ten dollars a carton. At that time Respondent had left the bar. Later Ferris returned to the bar and asked Davis to go outside with him. They got in Davis' car and rode around the block. Ferris gave Davis approximately three ounces of a substance as part of the arrangement to purchase cocaine. This item was turned over to a DEA agent. On March 6, 1997, Davis called Kirby at the bar and ordered an ounce of cocaine. The tone of the conversation was normal. On March 7, 1997, Davis went to the bar and contacted Kirby. Kirby was working. Kirby said the deal was off because of a death in the family. Kirby told Davis that they could talk later about doing one or two "keys" of coke. A "key" refers to a kilo of cocaine. This conversation was held in a normal tone of voice across the bar. On March 17, 1997, Davis called Ferris at the business phone number Ferris had given Davis. The call was about purchasing more cocaine. The phone number used was the number for the licensed premises. An arrangement was made to purchase cocaine of an undisclosed amount on the following Wednesday. On the following Wednesday, which was March 19, 1997, Davis returned to the bar and met with Ferris. Ferris was concerned about the rumor that there was an undercover officer working inside the bar. Davis did not acknowledge his undercover capacity in this conversation. It was decided to wait awhile before the parties did any more business. However, there was a conversation between Davis and Kirby in which Kirby said they could go to Miami and pick up cocaine. This conversation was in a normal tone of voice. As Davis was starting to leave, Robert Strauss approached Davis and asked Davis to bring back some cigarettes when Davis returned. On April 7, 1997, Davis called Ferris and discussed the purchase of one ounce of cocaine on the following Wednesday. This call was made to the telephone within the licensed premises. An agreement was made to purchase an ounce of cocaine, the cost of which was not determined. On April 16, 1997, Davis called the licensed premises and spoke with Kirby about the purchase of an ounce of cocaine. Then Davis went to the licensed premises and contacted Kirby who was working behind the bar. Kirby told Davis that the purchase of cocaine would cost $1,400 an ounce. This conversation was conducted in an open manner. Then Robert Strauss walked out from the back of the bar and asked Davis if Davis "had any hot cigarettes to sell." Davis said "they were all in the trunk." Robert Strauss followed Davis out to Davis' vehicle. In the trunk there were ten cartons of Camels and ten cartons of Marlboro Lights. Robert Strauss carried the cigarettes back into the bar in a box. Robert Strauss put the cigarettes up, went over to the cash register and obtained $100 which was given to Davis. The reference to putting the cigarettes up means that Robert Strauss took them to the storage room. Robert Strauss told Davis that he would buy more cigarettes if Davis would bring them to Robert Strauss. The transaction concerning the purchase of the cigarettes was made with no attempt to conceal the activity. Then Ferris came in and took over Kirby's assignment at the bar. Kirby then sat down next to Davis at the bar. They discussed the purchase of a key of coke, meaning a kilo of cocaine. They discussed that if that amount was broken down, the cost for an ounce would be $700. The purchase was to be made in Miami. This conversation was conducted openly. Davis and Kirby went outside and Davis gave Kirby $1,400 to purchase a smaller amount of cocaine. Kirby returned to the bar. Davis and Kirby then went to Davis' vehicle. Davis took the substance that had been offered as cocaine. This transaction took place after they drove away from the bar. Again, that substance was turned over to an agent with the DEA. On April 22, 1997, Davis called the bar and spoke to Kirby. They discussed the purchase of another ounce of cocaine for the next day. On April 23, 1997, Davis returned to the bar after arranging with Kirby, through a telephone call, to come to the bar. Kirby was tending the bar. Kirby and Davis discussed a cocaine deal. Kirby told Davis that basically all suppliers were sold out of cocaine. Kirby told Davis that some people were offering to sell for as much as $1,600 an ounce. This conversation took place at a little table next to the bar. Patrons were in the premises at that time. The conversation was held in a normal tone. Eventually Kirby told Davis that he had found someone that lives at the Gulf who could get an ounce of cocaine for $1,450. That price was agreed upon. After a person drove up, Kirby commented, "There's my man." At that moment Davis gave Kirby the money. Kirby counted the money. Kirby left the bar and returned. Kirby told Davis to go with Kirby to Kirby's van. They got in the van and drove around the block. Kirby gave Davis an ounce of a substance which was tendered as cocaine. That substance was turned over to an agent of the DEA. Davis returned to the bar on April 24, 1997. He met with Kirby who was tending bar. They discussed the purchase of cocaine. Kirby said he had an ounce of cocaine to sell and asked Davis if he wanted to purchase the cocaine. Davis agreed to purchase the cocaine for $1,400. Davis gave $1,400 to Kirby across the counter. Kirby told Davis to follow him to a bathroom. In the bathroom Kirby handed a substance in aluminum foil to Davis, represented to be cocaine. The substance was turned over to an agent of the DEA. On the same date, Kirby and Davis discussed making a trip to Miami to purchase cocaine, and what it would cost Davis if Kirby delivered the cocaine from Miami, as opposed to Davis and Kirby going to Miami to obtain the cocaine. A price of $32,000 for a kilo of cocaine was discussed. This conversation was held in an open manner. On April 25, 1997, the Tallahassee Police Department served a search warrant on the licensed premises looking for illegal drugs. Petitioner's agency was also involved in the search. During the search, underneath the bar on the right-hand side, an item was discovered, which through a field test revealed the presence of cocaine. The item was wrapped in tin foil. The tin foil was readily visible when standing behind the bar. In addition cigarettes were seized. The item that tested as cocaine in the field test was turned over to the resident agent in charge for the DEA. At the time the search was made on April 25, 1997, Petitioner was investigating the purchase of cigarettes from a non-wholesaler, as well as its interest in the sale of illegal narcotics. On that date, the Petitioner seized the cigarettes that Davis had sold to Respondent's employees. The cigarettes Davis sold had never had taxes remitted to the state of Florida based upon a wholesale transaction. Respondent identified that Kirby and Ferris were part- time bartenders who worked at night. Ferris also worked a Saturday day shift. Ordinarily a shift change to the night shift occurred at 6:00 p.m. Ferris had been a customer of the bar before being hired. Before being hired, Kirby was referred to Respondent by Respondent's friends. Respondent identified that Robert Strauss was more or less the supervisor in charge at the premises when the Respondent was not there. Robert Strauss cooked at the bar a couple of days a week. Robert Strauss was involved with purchasing supplies for the bar. Respondent indicated that Robert Strauss' duties in purchasing during the time in question involved the purchase of cigarettes. Beyond the time of the investigation described, within the last six months prior to the hearing, two employees had been dismissed for suspected drug use. This did not include Messrs. Ferris and Kirby. The dismissal of the other employees was made by Respondent. Respondent's day at the bar runs usually from 7:30 or 8:00 a.m. to 6:00 p.m. Prior to the events described in the facts, Respondent did not have a policy for his establishment concerning activity involving narcotics. Subsequent to the investigation, there is a written policy prohibiting employee activities involving narcotics. Respondent has no written policies advising his employees what the employees should do if they observe persons engaging in illegal narcotic activities. Respondent says that he explains to his employees verbally that if anyone discusses narcotics at the bar "they are out." Respondent has video cameras to monitor activities in the bar. The manner in which Robert Strauss solicited Davis for the purchase of cigarettes, Davis sold the cigarettes, and Respondent's employees sold the cigarettes obtained from the SuperValue Warehouse, creates the inference of impropriety by Robert Strauss and other employees affiliated with Respondent's licensed premises. The inference of impropriety is to the exclusion of any other inference to be gained from the conduct. The inference is that the cigarettes were not part of ordinary commerce and had questionable origins. Under the circumstances, it would be appropriate for an ordinary law-abiding person to suspect that the cigarettes which Davis presented to Robert Strauss and others in the premises, as solicited by Robert Strauss, were stolen. Davis billed the cigarettes as outside the bounds of ordinary commerce when describing the cigarettes as "hot." Davis also identified that the cigarettes were being purchased at a price that was more than a good bargain. The price helped in creating the appearance that the cigarettes were not part of legitimate commerce. As stated, the substances purchased by Chesney on January 9 and 15, 1997, were cocaine. The substance found during the search of the premises on April 25, 1997, was cocaine.1
Recommendation Based upon the findings of fact and conclusions of law, it is recommended that a final order be entered finding Respondent in violation of counts 1, 2, and 9 through 28, and finding that Respondent did not violate counts 2 through 8, and that imposes a penalty of revocation of license number 47-00190, series 4COP. DONE AND ENTERED this 17th day of June, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1998.
The Issue Did Respondent, Tarpon Liquors LLC (Tarpon Liquors), timely request a hearing to contest the Amended Order of Penalty Assessment issued by Petitioner, Department of Financial Services, Division of Workers' Compensation (Division)?
Findings Of Fact The Division is the state agency responsible for enforcing the statutory requirement that employers secure payment of workers' compensation for the benefit of their employees. § 440.107(3), Fla. Stat. (2019). Christina Brigantty is a Division compliance investigator. She checks employers for compliance with Florida's workers' compensation law. If an investigator concludes that an employer is not in compliance, she issues a Stop-Work Order along with a penalty assessment for the asserted periods of non- compliance. The Division determines periods of non-compliance by examining a business's records obtained from the business through a business records request. Investigator Brigantty performed a compliance check of Tarpon Liquors on July 31, 2018. As a result of that check, the Division issued Tarpon Liquors a Stop-Work Order and Order of Penalty Assessment. Subsequently the Division issued an Amended Order of Penalty Assessment dated December 13, 2018. It included a Stop- Work Order and Notice of Rights advising that Tarpon Liquors had 21 days from receipt of the Amended Order to file a petition for a hearing challenging the assessment. The Notice of Rights also stated that failure to request a hearing during that period waived the right to challenge the assessment. The Division transmitted the Amended Order to Tarpon Liquors, attention Ronald J. Maniscalco, registered agent, at 907 Narragansett Lane, Key Largo, Florida, by certified mail. The Narragansett Lane address was the residence of Mr. Maniscalco and Tarpon Liquors' managing member, Mr. Maniscalco's wife, Lorraine Maniscalco. The Division received the certified mail receipt from the postal service with the name Lorraine Maniscalco signed in the box for "Agent", and December 28, 2018, indicated as the date of delivery. Tarpon Liquors maintains that the signature on the certified mail receipt for the Amended Order is not Ms. Maniscalco's signature. Mr. Maniscalco believed that the mail carrier forged the signature. Mr. Maniscalco thought the signature was a forgery because Lorraine Maniscalco always signs her signature the same way and her signature does not match the signature on the certified mail receipt. Mr. Maniscalco filed a complaint with the United States Postal Service, which investigated the matter. The investigation included questioning the mail carrier who could not remember the certified mail document in question. The postal service reached no conclusions. During December 2018, Mr. and Ms. Maniscalco were in the process of moving. They were traveling between Tampa, Punta Gorda, and Key Largo frequently. Mr. and Ms. Maniscalco are unsure whether they were home December 28, 2018, and if they were, when they may have been there. In addition, their Narragansett Lane house was for sale. Consequently, they had to vacate the house frequently when the realtor was showing the house to potential buyers. There is a possibility the realtor signed in an effort to be helpful. Mr. Maniscalco, Ms. Maniscalco, and Ms. Shea, their daughter and also a manager of Tarpon Liquors, are all confident that the signature on the certified mail receipt is not Ms. Maniscalco's signature. There are significant differences between the signature on the receipt and Ms. Maniscalco's signature on her driver's license and on the sample signature admitted into evidence. The bottom loop of the "L" is notably different. The angle of the "M" is different. In addition, Ms. Maniscalco's "M" drops below the signature line while the "M" on the receipt does not. The evidence does not prove who signed the receipt. The weight of the credible, persuasive evidence, however, proves that Ms. Maniscalco did not sign it. In June 2019, Ms. Shea learned of the Amended Order in conversations with Investigator Brigantty. On July 3, 2019, Ms. Brigantty provided Ms. Shea a copy of the Amended Order, including the Notice of Rights. This was the first time that Tarpon Liquors received written notice of the Amended Order and the right to request a hearing. On July 9, 2019, the Division received a request for hearing dated July 5, 2019, from Mr. Maniscalco, challenging the Amended Order. This is more than 21 days after the December 28, 2018, date on the receipt for certified mail. The request for hearing stated: I never received notice of the Amended Order of Penalty Assessment that was sent on 12/12 and signed for on 12/28. The signature on the Return Receipt is not Lorraine Maniscalco's signature. Please see attached Drivers licenses for verification of Lorraine Maniscalco's actual signature for comparative purposes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, accept the request for hearing of Tarpon Liquors LLC as timely. DONE AND ENTERED this 3rd day of January, 2020, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 3rd day of January, 2020. COPIES FURNISHED: Leon Melnicoff, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 (eServed) Ronald Maniscalco Tarpon Liquors LLC 1421 Pine Island Court Punta Gorda, Florida 33950 Lena Marie Shea, Manager Tarpon Liquors LLC 4978 Edgewater Lane Oldsmar, Florida 34677-6342 Rean Knopke, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 (eServed) Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)
The Issue The issue in this case is whether Respondent violated Sections 569.006 and 569.007, Florida Statutes (1995), by selling cigarettes to a person under 18 years of age and by failing to have the cigarette vending machine in the line of sight, and, if so, what, if any, penalty should be imposed pursuant to Florida Administrative Rule 61A-2.022, 2/
Findings Of Fact Petitioner is the state agency responsible for regulating the sale of retail tobacco products. Respondent holds retail tobacco products permit number 58-05704T. The licensed premises are located at 8445 International Drive, Orlando, Florida (the "licensed premises"). Respondent operates the licensed premises for the sale of liquor at tables and a bar. On August 7, 1996, special agents Walter Russell and Linda Greenlee initiated a routine tobacco compliance investigation of the licensed premises. Agents Russell and Greenlee directed investigative aide Megan Holbrook, age 15, to enter the licensed premises and attempt to buy cigarettes from the vending machine. Ms. Holbrook and agents Russell and Greenlee entered the licensed premises at approximately 3:30 p.m. The cigarette vending machine was located just inside the doorway of the licensed premises. Agents Russell and Greenlee sat at the bar. Ms. Holbrook inserted the necessary amounts into the vending machine and purchased one package of Winston cigarettes. None of Respondent's employees questioned Ms. Holbrook concerning her age or identification. Approximately three employees were engaged in a conversation behind the bar during the time that Ms. Holbrook purchased the cigarettes. No patrons were present at the time except Ms. Holbrook and agents Russell and Greenlee. The cigarette vending machine was positioned so that a person standing behind the bar could not see the face of anyone purchasing cigarettes unless the purchaser was at least six feet tall. A view of the purchaser is obstructed by beams and shelves. The vending machine is approximately five feet tall. It is not in the direct line of sight of an employee who is responsible for monitoring the purchase of cigarettes. Ms. Holbrook and agents Russell and Greenlee exited the premises after the purchase. Ms. Holbrook turned over the cigarettes to agents Russell and Greenlee. Agents Russell and Greenlee returned inside the premises. They advised the employees inside that an unlawful sale of cigarettes had occurred and served the required documents.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Sections 569.06 and 569.07 and imposing a fine of $750. DONE AND ENTERED this 18th day of November, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1997.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made. On September 15, 1960, Earman Oil Company, Inc., was granted License Number 1748 (the "Special Fuels Dealer's License") authorizing it to operate as a User-Dealer of special fuels in the State of Florida. On the face of that License was the following notation: This license is NOT TRANSFERRABLE but will continue in full force and effect until cancelled or revoked as provided by law. The Special Fuels Dealer's License also contained a notation that provided as follows: This license must be returned to RAY F. GREEN, Comptroller, when a licensee terminates his operation as a User-Dealer. On April 1, 1967, Earman Oil Company, Inc., was issued State License Number 375 (the "Motor Fuels Distributor's License") by the Florida Revenue Commission, authorizing Earman to engage in the business of distributing motor fuels in the State of Florida. On the face of that License was the following notation: This license is not transferrable or assignable, and must be displayed conspicuously at all times at the Distributor's office or principle place of business. A Special Fuels Dealer's License and a Motor Fuels Distributor's License entitle a holder to purchase diesel fuel and gasoline for distribution without paying local option taxes pursuant to Chapter 336, Florida Statutes, motor fuel retail sales tax pursuant to Chapter 212, Part II, Florida Statutes and motor fuels tax pursuant to Chapter 206, Part I, Florida Statutes. A holder of such licenses is obligated to collect the taxes upon resale to customers and to remit those taxes to the state. If the resale is to another distributor who holds a valid license, the sale can be made tax free provided the seller follows the procedures set forth in the statutes and applicable DOR rules. In order to obtain either of the licenses during all times pertinent to this case, a company was required to have been in operation for at least one year and had to meet certain other requirements, including the posting of a bond. Sometime in 1983, Barkett, a licensed dealer of special and motor fuels in the state of Florida, purchased Florida Coast Oil Company, Inc. ("Florida Coast"), another licensed dealer of special and motor fuels in the State of Florida. The evidence did not establish the specific terms and details of that acquisition. The licenses held by Florida Coast which enabled it to purchase motor fuels on a tax exempt basis were not cancelled or revoked following Barkett's acquisition of the company. Barkett apparently acquired all of the stock of Florida Coast and Florida Coast continued in operation under that same name. Many, if not all, of the officers and directors of Barkett at this time also became officers and directors in Florida Coast. The evidence was conflicting and confusing as to the status of Earman Oil during 1980-1984. After review of all the evidence, it is concluded that Florida Coast acquired Earman Oil Company in 1980. The evidence did not establish the specific terms and details of that transaction. Apparently, this acquisition was also a stock purchase arrangement and Earman Oil Company initially remained in existence following its acquistion by Florida Coast. However, on August 31, 1981, Earman Oil Company was officially merged into Florida Coast. Harry Barkett, the president of Barkett and Florida Coast (after its acquisition by Barkett in 1983,) testified that the Department was advised of Florida Coast's acquisition of Earman Oil Company and Florida Coast was told by DOR that it could continue to use the licenses issued to Earman Oil Company in order to purchase motor fuels on a tax exempt basis. However, it does not appear that Mr. Barkett had any interest in Florida Coast at the time of the acquisition of Earman and no explanation was provided as to how he learned of DOR's alleged approval of the continued use of Earman's licenses. This contention is discussed in more detail in Findings of Fact 24 below. On September 10, 1984, Florida Coast sold certain assets to Alfred Vittorino. Vittorino had previously worked as a manager for Barkett. The sales agreement provided that the assets being sold included ll rights to operate as Earman Oil Company including but not limited to all rights to the stock, licenses, permits or trademarks that are titled to Earman Oil Company that are required to operate the business. The parties have stipulated that on September 12, 1984, a Certificate of Incorporation for a new Earman Oil Company, Inc., was filed with the Office of the Secretary of State for Florida and that Alfred Vittorino was the president and sole stock holder for that company. The licenses issued to the original Earman Oil Company could not legally be transferred or assigned to the new company. Moreover, the new company could not qualify for new licenses on its own since it had not been in operation for at least one year. There is no dispute that at the time Vittorino acquired the assets from Florida Coast and began operating under the name Earman Oil Company, the Special Fuel Dealer's License and the Motor Fuel Distributor's License previously issued in the name of Earman Oil Company were delivered to Vittorino by Florida Coast. Harry Barkett, who was the president of both Barkett and Florida Coast at the time of the sale to Vittorino, testified that Vittorino told him that he would take whatever steps were necessary to get the licenses reissued and/or obtain new licenses so that Earman could continue to purchase fuel on a tax exempt basis. Earman Oil Company never applied for new licenses after its acquisition by Vittorino. Instead, the company merely obtained and used the old licenses. Since the Special Fuel Dealer's License and the Motor Fuel Distributor's Licenses issued to the original Earman Oil Company has never been cancelled, "Earman Oil Company" was still registered with DOR as a distributor of motor fuel and a dealer of special fuels and it remained registered during the entire period in question, September 1984 to April 1985. Although Harry Barkett testified that he believes DOR was notified of Florida Coast's sale of Earman's assets to Vittorino, DOR has no record of the sale and/or the transfer of the licenses of Earman Oil Company to Vittorino. No persuasive evidence was presented to establish that DOR was fully advised as to the terms of the sale and the status of the companies at the time of the sale. The contention that DOR approved the transfer of the licenses to the new company established by Vittorino is rejected. After Vittorino purchased the above described assets from Florida Coast, Earman Oil Company began engaging in the business of selling motor fuel and special fuels to its customers. During the period from September 1984 through April 1985, Earman Oil Company purchased gasoline and diesel fuel from Barkett and other companies and sold that fuel to, among others, Miami Petroleum Oil Company, Inc., an unlicensed distributor of gasoline and diesel fuel. During that period, the invoices for the sales by Barkett to Earman Oil Company indicated that the sales were tax exempt and there is no indication that taxes were being collected from Earman. Barkett did not obtain an affidavit or "resale" certificate from Earman Oil Co. prior to selling tax exempt. However, Barkett filed tax returns with DOR indicating that the sales were tax exempt. Barkett contends that its typical procedure for selling tax exempt to a customer is to obtain the customer's license number and verbally confirm the validity of that number with the Department. Petitioner contends that it followed this procedure prior to selling tax exempt to Earman Oil Company and that the Department confirmed that the license numbers provided by Earman Oil Company were valid. While Petitioner contends that it contacted the Respondent in order to verify that Earman Oil Company was in possession of a valid license, there is no written evidence of any such communication. The applicable statutes and regulations require a distributor to obtain an affidavit or a "resale certificate" in order to sell fuel tax exempt. There is no provision in the rules or the statutes for verbal confirmation of licensure status. From September 1984 through April 1985, Earman Oil collected motor fuel taxes under Chapters 206 and 212, Florida Statutes, from its customers, but never remitted those taxes to the state. There is no evidence that any of the taxes collected by Earman Oil were transferred to Barkett. Earman Oil Company filed tax returns with DOR indicating that it had not collected any taxes. Criminal charges were subsequently brought against Vittorino for failure to remit collected motor fuel taxes for the period September 1984 through April 1985. Vittorino was found guilty by a jury of failure to remit collected motor fuel taxes and was initially sentenced to nine years in prison, which was subsequently reduced to six years on appeal. As of the date of the hearing in this administrative proceeding, the state has not collected any of the outstanding taxes from Vittorino or Earman Oil. Petitioner contends that during the trial of Vittorino, the State of Florida maintained that Earman Oil Company held valid licenses as a distributor of motor fuel and as a dealer of special fuels during the period September 1984 through May 1985. The transcript of that criminal proceeding confirms that this was one theory advanced by the prosecution during that case. However, there was considerable confusion during that trial as to the licensure status of Earman. Ultimately, Vittorino was convicted of failure to remit collected motor fuel taxes. It was not an essential element of this offense for Earman to be a valid license holder. DOR conducted an audit of Barkett (Audit Number 86-17412886) for the period September 1984 through April 1985. The Department's audit indicated that Barkett sold 9,548,414 gallons of motor fuel on a tax free basis to Earman Oil Company during the period from September 1, 1984 through April 30, 1985. During the audit, the auditor requested Barkett to provide resale certificates or affidavits from Earman Oil Company to substantiate the basis for the tax exempt sales. Barkett was unable to produce any such resale certificates or affidavits. As a result, DOR concluded that Barkett was responsible for collecting and remitting to the state taxes on all the sales made during this period by Barkett to Earman. Barkett contested the results of the audit and the Department's Notice of Decision issued on August 4, 1988. Barkett timely petitioned for reconsideration of that decision on September 2, 1988. The Department issued its Notice of Reconsideration on January 19, 1989. In its Notice of Reconsideration, the Department determined that the balance due for the Local Option Tax pursuant to Chapter 336, Florida Statutes, was $540,173.68, which consisted of $381,936.56 tax, $95,484.14 penalty and $62,752.98 interest (with interest accruing at the rate of $125.50 per day from June 6, 1986, until date of payment.) The Department also determined that the balance due for motor fuel retail sales tax pursuant to Chapter 212, Part II, Florida Statutes, was $769,747.50, which consisted of $544,259.60 tax, $136,064.90 penalty and $89,423.00 interest (with interest accruing at the rate of $178.93 per day from June 6, 1988 until date of payment.) Finally, the Department determined that the balance due for motor fuels tax pursuant to Chapter 206, Part I, Florida Statutes, was $540,173.68, which consisted of $381,936.56 tax, $95,484.14 penalty, and $62,752.98 interest (with interest accruing at the rate of $125.57 per day from June 6, 1986 until date of payment.) 1/ As part of its reconsideration, the Department deleted the fraud penalties that had previously been assessed against Barkett. Barkett timely filed a challenge to the Department's conclusions in the Notice of Reconsideration. 2/ During the late 70's and early 1980's, Barkett Oil acquired a number of different oil companies (including Florida Coast, which had previously acquired Earman). Several of the companies that were acquired by Barkett held licenses from the Department that enabled them to purchase motor fuels on a tax exempt basis for resale. Barkett contends that it notified the Department of each of those acquisitions and was never instructed that it had to reapply for a license to purchase tax exempt. Barkett suggests that these prior experiences justified its conclusion that Earman Oil Company could continue to purchase tax exempt following the sale and transfer of licenses to Vittorino. However, the circumstances and terms of the prior acquisitions by Barkett were not established in this case. It is not clear whether those transactions were stock purchase agreements or simply the acquisition of assets. Furthermore, the evidence regarding the notification supposedly given to the Department was vague and unconvincing. Although Petitioner contends that it notified the Department that Earman Oil Company had been sold to Vittorino, there is no written evidence of any such communication. It is not clear who at the Department was notified of the sale nor is it clear what information was provided regarding the sale. In sum, Petitioner's contention that Respondent should be estopped from claiming that Earman Oil Company did not hold a valid Distributor's License and/or Special Fuel License is rejected. There was insufficient persuasive evidence to establish that an authorized representative of the Department who was provided with full disclosure of the facts surrounding the transfer to Vittorino advised Petitioner that it could sell tax exempt to Earman Oil Company.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered upholding the assessments set forth in the Notice of Reconsideration. RECOMMENDED this 10th day of February, 1992, at Tallahassee, Florida. J. STEPHEN MENTON 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 10th day of February, 1992.
