09-001461 Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco vs. Saurel Tales, D/B/A Miami Shop No. 4 Status: Closed Recommended Order on Tuesday, August 25, 2009.

Summary: Respondent should be fined $1,000 for possessing on the licensed premises beverages that he was not licensed to sell.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINES AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 09-1461

)

SAUREL TALES, d/b/a MIAMI SHOP )

NO. 4, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on July 6, 2009, by video teleconference between Miami and

Tallahassee, Florida, before Administrative Law Judge Claude B.

Arrington of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Michael Golen, Esquire

Kerrington Kiner, Law Clerk

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Saurel Tales, pro se

Miami Shop No. 4

1024 Northwest 100th Street

Miami, Florida 33150

STATEMENT OF THE ISSUE

Whether Petitioner proved by clear and convincing evidence

that Respondent is guilty of the offense alleged in the

Administrative Complaint dated November 19, 2008, and, if so,

the penalty that should be imposed.

PRELIMINARY STATEMENT

Respondent, Saurel Tales, d/b/a Miami Shop No. 4

(Respondent), is licensed by Petitioner, Department of Business

and Professional Regulation, Division of Alcoholic Beverages and

Tobacco (Petitioner), to sell package sales of beer and wine

without consumption on the premises. On November 19, 2008,

Petitioner filed an Administrative Complaint alleging that

Respondent possessed liquor on the licensed premises not

authorized to be sold under Respondent’s license. Petitioner

alleged that Respondent violated “. . . section 562.02 within

[sic] 561.29(1)(a), Florida Statutes.” Unless otherwise noted,

all statutory references are to Florida Statutes (2008).

Respondent timely requested a formal hearing to challenge

the allegations in the Administrative Complaint. Thereafter,

the matter was referred to DOAH and this proceeding followed.

At the formal hearing, the Division presented the testimony

of Special Agent Alain Rodriguez and Investigation Specialist

Rachel Devero-Byrd, both of whom are employed by Petitioner.

Petitioner offered six sequentially-numbered Exhibits, each of

which was admitted into evidence. Respondent did not present

any testimony or any exhibit. At the request of Petitioner,

official recognition was taken of Sections 561.29(1)(a) and

562.02 Florida Statutes.

A Transcript of the proceeding, consisting of one volume,

was filed on August 4, 2009. Petitioner timely filed a Proposed

Recommended Order, which has been duly-considered by the

undersigned in the preparation of this Order. Respondent did

not file a proposed recommended order.

FINDINGS OF FACT

1. Petitioner is the agency of the State of Florida that

regulates the sale of alcoholic beverages.

2. At all times relevant to this proceeding, Respondent

has been licensed to sell package sales of beer and wine without

consumption on the premises. Respondent’s license also

authorizes Respondent to sell tobacco products. Respondent’s

license does not permit him to sell liquor. Respondent’s

license number is 23-27577, Series 2-APS.

3. Investigator Rachel Devero-Byrd and Agent Alain

Rodriguez are appropriately trained and experienced

investigators employed by Petitioner. Ms. Devero-Byrd routinely

performs inspections of premises licensed by Petitioner. Agent

Rodriguez routinely investigates administrative and/or criminal

complaints against licensees.

4. On October 21, 2008, Ms. Devero-Byrd came to

Respondent’s store to conduct a routine investigation of the

licensed premises. Respondent’s place of business was targeted

for an investigation because it had been three or more years

since the last investigation of his licensed premises.

5. During the investigation, Ms. Devero-Byrd noticed

several bottles containing liquor under the cash register area

of the counter. On October 21, 2008, Respondent had in his

possession on the licensed premises one sealed 750 milliliter

bottle of Blackwell Fine Jamaican Rum, one sealed 750 milliliter

bottle of Rhum Barbancourt, one sealed 750 milliliter bottle of

Carlo Smirnoff Distilled Vodka, and one unsealed 750 milliliter

bottle of Appleton Estate Jamaican Rum. Three of the bottles

contained rum. The other bottle contained vodka. All four

bottles contained alcoholic beverages not authorized by law to

be sold by Respondent.

6. In response to Ms. Devero-Byrd’s request for

assistance, Agent Rodriguez was sent to Respondent’s licensed

premises. Agent Rodriguez secured the bottles of liquor, placed

them in an evidence bag, took the bottles to the Miami area

office, and delivered the sealed evidence bag to the evidence

custodian. Agent Rodriguez retrieved the bottles of liquor and

had physical possession of them at the formal hearing.

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

(2009).

8. In this disciplinary proceeding, the Division has the

burden of proving by clear and convincing evidence the

allegations against Respondent. See Ferris v. Turlington , 510

So. 2d 292 (Fla. 1987); Inquiry Concerning a Judge , 645 So.2d

398 (Fla. 1994); and Evans Packing Co. v. Department of

Agriculture and Consumer Services , 550 So.2d 112 (Fla. 1st DCA

1989). The following statement has been repeatedly cited in

discussions of the clear and convincing evidence standard:

Clear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

evidence must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact the firm belief of

(sic) conviction, without hesitancy, as to

the truth of the allegations sought to be

established. Slomowitz v. Walker , 429 So.2d

797, 800 (Fla. 4th DCA 1983).

9. Section 562.02, Florida Statutes, provides as follows:

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. Section 561.29(1)(a), Florida Statutes, provides, in

relevant part, as follows:

(1) The division is given full power and

authority to revoke or suspend the license

of any person holding a license under the

Beverage Law, when it is determined or found

by the division upon sufficient cause

appearing of:

(a) Violation by the licensee or his or

her or its agents, officers, servants, or

employees, on the licensed premises, or

elsewhere while in the scope of employment,

of any of the laws of this state or of the

United States, or violation of any municipal

or county regulation in regard to the hours

of sale, service, or consumption of

alcoholic beverages . . .

11. Petitioner established by clear and convincing

evidence that Respondent violated the provisions of Section

562.02, Florida Statutes. Petitioner should penalize

Respondent’s license pursuant to Section 561.29(1)(a), Florida

Statutes.

12. In its Proposed Recommended Order, Petitioner seeks an

administrative fine against Respondent in the amount of

$1,000.00. Florida Administrative Code Rule 61A-2.022 sets

forth penalty guidelines applicable to this case. The

undersigned adopts Petitioner’s recommended penalty because it

is consistent with the guideline for a first violation of

Section 562.02, Florida Statutes. There are no aggravating or

mitigating factors to be considered in determining the

appropriate penalty.

13. Ms. Devero and Agent Rodriguez observed empty liquor

bottles in the same area as the liquor bottles described above

were found. The charges set forth in the Administrative

Complaint do not contain allegations pertaining to the empty

bottles. The undersigned has given no consideration to the

testimony relating to empty bottles observed at the licensed

premises.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

Law, it is RECOMMENDED that Petitioner enter a final order that

adopts the Findings of Fact and Conclusions of Law set forth

herein. It is, further, RECOMMENDED that the Final Order impose

an administrative fine against Respondent in the amount of

$1,000.00.

DONE AND ENTERED this 25th of August, 2009, in Tallahassee,

Leon County, Florida.

CLAUDE B. ARRINGTON

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 25th day of August, 2009.

COPIES FURNISHED :

Michael B. Golen, Esquire

Department Business and Professional

Regulation

1940 North Monroe Street, Suite 40

Tallahassee, Florida 32399

Saurel Tales

Miami Shop, No. 4

1024 Northwest 100th Street

Miami, Florida 33150

Jerry Geier, Director

Division of Alcoholic Beverages

and Tobacco

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Reginald Dixon, 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.