08-005485 Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco vs. M And Y Vaco, Inc., D/B/A M And Y Food Mart Status: Closed Recommended Order on Thursday, March 19, 2009.

Summary: Respondent violated law by possessing on business premises alcoholic beverages, other than the beer and wine license allowed. Mitigating factors and unintentional violation were considered in the recommended fine of $500 and $7.67 in unpaid excise taxes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 08-5485

)

M AND Y VACO, INC., d/b/a M AND Y FOOD MART, )

)

)

Respondent. )

)

RECOMMENDED ORDER

As previously scheduled, a formal hearing was held in this

case by video teleconference between Lauderdale Lakes and

Tallahassee, Florida, on December 23, 2008, before Administrative

Law Judge Eleanor M. Hunter of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Michael John Wheeler, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32303

For Respondent: Yves Corneille, pro se

Monette Corneille, pro se

M and Y Vaco, Inc., d/b/a M and Y Food Mart

301 West Sunrise Boulevard

Fort Lauderdale, Florida 33311

STATEMENT OF THE ISSUE

The issue is whether an administrative fine should be

imposed on Respondent for unlawful possession of certain

alcoholic beverages on its licensed premises, as alleged in the

Administrative Action dated June 2, 2008.

PRELIMINARY STATEMENT

In an Administrative Action, taken on June 2, 2008, against

Respondent, Petitioner alleged that on or about May 29, 2008, one

of Respondent's officers unlawfully allowed or permitted the

possession on its licensed premises of alcoholic beverages, other

than the beer and wine that it is authorized to sell. On

June 20, 2008, Respondent denied the allegation and requested a

formal hearing.

The matter was referred by Petitioner to the Division of

Administrative Hearings on November 3, 2008, with a request that

an Administrative Law Judge be assigned to conduct a formal

hearing. By Notice of Hearing dated November 25, 2008, a final

hearing was scheduled and was held as scheduled on December 23,

2008, by video teleconference between Lauderdale Lakes and

Tallahassee.

At the final hearing, Petitioner presented the testimony of

David Kordzikowski, a special agent. Petitioner's Exhibits 1-5

were also received into evidence. Respondent presented the

testimony of Yves Corneille, the husband of its officer/employee,

Monette Corneille, who also testified. No transcript of the

hearing was filed. Petitioner's Proposed Recommended Order was

received on January 13, 2008.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

1. In this disciplinary action, Petitioner, Department of

Business and Professional Regulation, Division of Alcoholic

Beverages and Tobacco (Division), seeks to impose a penalty on

the license of Respondent, M and Y Vaco, Inc., doing business as

M and Y Food Mart ("M and Y").

2. Respondent, M and Y is the holder of Beverage License

Number 1618148 Series 2-APS, that permits the sale of beer and

wine but no other alcoholic beverages.

3. On or about May 29, 2008, Special Agent David

Kordzikowski conducted a routine inspection of M and Y at 301

East Sunrise Boulevard, Ft. Lauderdale, Florida.

4. During the inspection, the special agent looked in an

unlocked cabinet on the west side of the premises and found four

750 mililiter bottles of Barbancourt Rhum, one 1.44 liter bottle

of Disaronno Liquor, one 1 liter bottle of Ron Llave Puerto Rican

Rum, one 1 liter bottle of Bailey's Irish Cream, and one 1.75

liter bottle of Florde Cana Rum. Of the eight bottles, two were

unsealed. Five of the bottles, the Barbancourt Rhum and the

Disaronno Liquor, did not have the necessary proof that

approximately $7.67 in Florida excise taxes had been paid.

5. At the time the alcoholic beverages were found, the

employee on duty was M and Y's Vice President Monette Corneille.

Mrs. Corneille and her husband, Yves Corneille, testified that

they did not know that it was illegal for them to possess

alcoholic beverages other than beer and wine, and that the rums

and liquors were gifts and were kept for religious purposes to

protect the premises.

6. The special agent testified that the location of the

cabinet, Mrs. Corneille's immediate response, and her explanation

of religious beliefs about "spirits" led him to believe the

violation was unintentional. In its proposed order, the Division

suggests the imposition of fines of $1,507.67, but notes that a

reduced penalty may be imposed if mitigating circumstances are

established.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569 and 120.57(1), Florida Statutes

(2008).

8. As the party seeking to impose penal sanctions on

Respondent's license, Petitioner bears the burden of proving the

allegations in the charging document by clear and convincing

evidence. See , e.g. , Pic N' Save Central Fla., Inc. v. Dep't of

Bus. and Prof. Reg., Div. of Alco. Bev. and Tobacco , 601 So. 2d

245 (Fla. 1st DCA 1992).

9. The Administrative Action alleged that Respondent

violated the following provisions of the beverage laws:

562.01 Possession of untaxed beverages . --It

is unlawful for any person to own, possess,

purchase, sell, serve, distribute, or store

any alcoholic beverages unless said person

has fully complied with the pertinent

provisions of the beverage law relating to

the payment of excise taxes.

562.02 Possession of beverage not permitted

to be sold under license . --It is unlawful for

a licensee under the Beverage Law or his or

her agent to have in his or her possession,

or permit anyone else to have in his or her

possession, at or in the place of business of

such licensee, alcoholic beverages not

authorized by law to be sold by such

licensee.

10. The evidence is clear and convincing that Respondent

violated the provisions of Sections 562.01 and 562.02, Florida

Statutes (2008), and is subject to a penalty for the violations,

as provided in Subsection 561.29(1)(a), Florida Statutes (2008).

11. Penalty guidelines are established in Florida

Administrative Code Rule 61A-2.022 that provides, in relevant

part:

(1) This rule sets for the penalty

guidelines which shall be imposed upon

alcoholic beverage licensees and permittees

who are supervised by the division. District

supervisors, audit supervisors, and bureau

chiefs are authorized to accept settlement

offers that do not deviate from the penalty

guidelines. The penalties provided below are

based upon a single violation which the

licensee committed or knew about; or a

pattern of at least three violations on

different dates within a 12-week period by

employees, independent contractors, agents,

or patrons on the licensed premises or in the

scope of employment in which the licensee did

not participate; or violations which were

occurring in an open and notorious manner on

the licensed premises. (Emphasis added.)

12. The guidelines provide for a $500 fine and the payment

of the excise tax of $7.67 for a violation of Section 562.01, and

a $1,000 fine for the violation of Section 562.02.

13. Mitigating factors may be considered. The Division's

special agent's and Mrs. Corneille's credible testimony justify

mitigation. Based on the reduction of the suggested fine of

$1,820 to $750 in a similar case, after a license holder's

employee, without his knowledge, served unauthorized after-dinner

drinks and "chasers" for beer from liquor kept in the kitchen for

cooking purposes, and given the very small amount of unauthorized

beverages in that case and this one, mitigation is appropriate.

Dep't. of Business and Prof. Reg., Div. of Alcoholic Bev. and

Tobacco v. Polpo Mario, Inc., et al. , DOAH Case No. 99-3065 (R.O.

12/30/99, F.O. 2/15/2000).

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 determining that Respondent has

violated Sections 562.01 and 562.02, Florida Statutes (2008), as

charged in the Administrative Action, and imposing an

administrative fine in the amount of $500 and an excise tax of

$7.67.

DONE AND ENTERED this 19th day of March, 2009, in

Tallahassee, Leon County, Florida.

S

ELEANOR M. HUNTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of March, 2009.

COPIES FURNISHED :

Yves Corneille

Monette Corneille

M and Y Vaco, Inc., d/b/a M and Y Food Mart

301 West Sunrise Boulevard

Fort Lauderdale, Florida 33311

Gerda Desir

M and Y Vaco, Inc., d/b/a M and Y Food Mart

301 West Sunrise Boulevard

Fort Lauderdale, Florida 33311

Michael John Wheeler, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32303

Cynthia Hill, Director

Division of Alcoholic Beverages

and Tobacco

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.