04-003166 Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco, vs. Cebatien And Marc Dierestil, D/B/A Food Market No. 2 Status: Closed Recommended Order on Thursday, January 27, 2005.

Summary: Respondent offered unstamped packages of cigarettes for sale in violation of Section 210.18(1) and failed to provide an invoice stating that the cigarettes were purchased from a licensed wholesaler. Recommend $1500.00 fine plus tax owing on cigarettes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3166

)

CEBATIEN AND MARC DIERESTIL, )

d/b/a FOOD MARKET NO. 2, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

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

on November 1, 2004, by video teleconference, with the

Respondent appearing in Ft. Lauderdale, Florida, and the

Petitioner a ppearing in Tallahassee, Florida, before Patricia

Hart Malono, a duly - designated Administrative Law Judge of the

Division of Administrative Hearings, who presided in

Tallahassee, Florida.

APPEARANCES

For Petitioner: Benjamin G. Snipes, Esquire

Department of Business and

Professional Regulation

Office of the General Counsel

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: Cebatien Dierestil, pro se

2519 North Andrews Avenue

Wilton Manors, Florida 33311

STATEMENT OF THE ISSUE

Whether the Respondents committed the violations alleged in

the Administrative Action dated June 22, 2004, and, if so, the

penalty that should be imposed.

PRELIMINARY STATEMENT

In an Administrative Action dated June 22, 2004, the

Department of Business and Professional Regulation, Division of

Alcoholic Beverages and Tobacco ("Division") alleged in Count 1

that, on or about June 2, 2004, Cebatien and Marc Dierestil,

d/b/a Food Mart No. 2 ("Food Mart"), permitted the possession of

alcoholic beverages on the premises of the Food Mart, which

could not be sold under the Food Mart's license; alleged in

Count 2 that, on or about June 2, 2004, the Dierestil's offered

for sale at the Food Mart unstamped cigarettes with the intent

to willfully evade payment of the tax on the cigarettes; and

alleged in Count 3 that, on or about June 2, 2004, the

Dierestil's possessed cigarettes purchased from a person who did

not hold a wholesale license permit to sell cigarettes. The

Dierestil's timely disputed the material facts alleged in the

Administrative Action and requested an administrative hearing.

The Division for warded the matter to the Division of

Administrative Hearings for assignment of an administrative law

judge. Pursuant to notice, the final hearing was held on

November 1, 2004.

At the hearing, the Division presented the testimony of

Cebatien Dierestil and Shawn Kehoe, and Petitioner's Exhibit 1

was offered and received into evidence. Mr. Dierestil testified

on behalf of himself and Marc Dierestil, his partner; he did not

offer any documents into evidence. At the Division's request,

official recognition wa s taken of Sections 210.15, 210.18,

562.02, 564.02, 568.01, Florida Statutes (2004). 1

The one - volume transcript of the proceedings was filed with

the Division of Administrative Hearings. Neither party filed

proposed findings of fact or conclusions of law.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The Division is the state agency charged with

administering Florida's alc oholic beverage and tobacco law.

§ 561.02, Fla. Stat. (2004).

2. The Food Mart holds a Series 2 - APS license, numbered

16 - 13705.

3. On June 2, 2004, the Division conducted an inspection

of the premises of the Food Mart. The inspector found six

bottles f illed with a cream - colored liquid. One bottle was on

the counter, next to the cash register, and the other five

bottles were inside a cabinet behind the cash register, wrapped

in newspaper.

4. The bottles contained a homemade Haitian beverage

called crem asse. A friend made the beverage for Mr. Cebatien

Dierestil, who intended to serve the beverage at a party at his

home. The person who made the beverage took the six bottles to

the Food Mart to give it to Mr. Dierestil, but Mr. Dierestil was

not in the s tore at the time. A Food Mart employee placed the

bottle of cremasse on the counter, even though it was for

Mr. Dierestil's personal use.

5. Cremasse contains a small amount of alcohol, but

Mr. Dierestil did not know the exact amount.

6. During the insp ection of Food Mart on June 2, 2004, the

Division found 97 packages of cigarettes offered for sale that

did not carry the stamps indicating that the applicable taxes

had been paid on the cigarettes. Some of the 79 unstamped

packages of Newport cigarettes and of the 18 unstamped packages

of Marlboro cigarettes were commingled with other packages of

cigarettes displayed over the cash register, and others were in

full cartons placed in the area where the extra inventory of

cigarettes was kept.

7. The cigaret tes were purchased from a person that came

by the Food Mart, and the invoice for the cigarettes was not

among the invoices Mr. Dierestil provided to the Division's

inspectors. Mr. Dierestil was not aware that the cigarette

packages were supposed to carry tax stamps.

8. The Division failed to present evidence establishing

the alcoholic content of the liquid inside the bottles found at

the Food Mart.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes.

10. In its Administrative Action, the Department seeks to

impose penalties against Cebatien and Marc Dierestil that

include suspension or revocation o f their alcoholic beverage

license and/or the imposition of an administrative fine.

Therefore, it has the burden of proving by clear and convincing

evidence that the Dierestils committed the violations alleged in

the Administrative Action. Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne Stern

and Co. , 670 So. 2d 932 (Fla. 1996); and Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1987).

11. Each of the three counts of the Administrative Action

is predicated on a vi olation of a provision of the Florida

Statutes. Such a violation can form the basis for the Division

to take disciplinary action against the holder of a license

under Florida's Beverage Law, pursuant to Section 561.29,

Florida Statutes, which provides in pertinent part:

(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 regula tion in regard to the hours

of sale, service, or consumption of

alcoholic beverages or license requirements

of special licenses issued under s. 561.20,

or engaging in or permitting disorderly

conduct on the licensed premises, or

permitting another on the l icensed premises

to violate any of the laws of this state or

of the United States. A conviction of the

licensee or his or her or its agents,

officers, servants, or employees in any

criminal court of any violation as set forth

in this paragraph shall not b e considered in

proceedings before the division for

suspension or revocation of a license except

as permitted by chapter 92 or the rules of

evidence.

* * *

(3) The division may impose a civil penalty

against a licensee for any violation

mentioned in the Beverage Law, or any rule

issued pursuant thereto, not to exceed

$1,000 for violations arising out of a

single transaction. If the licensee fails

to pay the civil penalty, his or her license

shall be suspended for such period of time

as the division may specify. The funds so

collected as civil penalties shall be

deposited in the state General Revenue Fund.

Count 1

12. In Count 1 of the Administrative Action, the Division

charged that the Dierestil's violated Section 562.02, Florida

Statutes, on the g rounds that the six bottles found on the

premises of the Food Mart contained an alcoholic beverage that

could not be sold under the Food Mart Series 2 - APS license.

Section 562.02, Florida Statutes, provides in pertinent part:

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.

1 3. The Series 2 - APS license held by Food Mart authorizes

the package sale of beer and wine. See Fla. Admin. Code R 61A -

1.013.

14. "Alcoholic beverages" are defined in 561.01, Florida

Statutes, as follows:

(4)(a) "Alcoholic beverages" means

distilled sp irits and all beverages

containing one - half of 1 percent or more

alcohol by volume.

(b) The percentage of alcohol by volume

shall be determined by measuring the volume

of the standard ethyl alcohol in the

beverage and comparing it with the volume of

th e remainder of the ingredients as though

said remainder ingredients were distilled

water.

15. Based on the findings of fact herein, the Division

failed to prove by clear and convincing evidence that the

Dierestils violated Section 562.02, Florida Statute s, because it

failed to prove that the liquid in the bottles on the counter

and in the cabinet of the Food Mart was an alcoholic beverage as

defined in Section 561.01(4), Florida Statutes.

Counts 2 and 3

16. In Count 2 of the Administrative Action, the D ivision

charged that the Dierestil's violated Section 210.18(1), Florida

Statutes, by offering for sale unstamped packages of cigarettes

and that such violation was "within 561.20(1)(a), Florida

Statutes."

17. Section 210.18, Florida Statutes, provides in

pertinent part:

(1) Any person who possesses or transports

any unstamped packages of cigarettes upon

the public highways, roads, or streets in

the state for the purpose of sale; or who

sells or offers for sale unstamped packages

of cigarettes in violatio n of the provisions

of this part; or who willfully attempts in

any manner to evade or defeat any tax

imposed by this part, or the payment

thereof, is guilty of a misdemeanor of the

first degree, punishable as provided in

s. 775.082 or s. 775.083. Any pers on who

has been convicted of a violation of any

provision of the cigarette tax law and who

is thereafter convicted of a further

violation of the cigarette tax law is, upon

conviction of such further offense, guilty

of a felony of the third degree, punishab le

as provided in s. 775.082, s. 775.083, or

s. 775.084.

18. In Count 3 of the Administrative Action, the Division

charged that the Dierestil's violated Section 215(1)(b), Florida

Statutes, by purchasing the 97 unstamped packages of cigarettes

from a per son other than one "holding a wholesale dealer permit"

and that such violation was "within 561.20(1)(a), Florida

Statutes."

19. Section 210.15, Florida Statutes, provides in

pertinent part:

(1)(a) Every person, firm, or corporation

desiring to deal in ci garettes as a

distributing agent, wholesale dealer, or

exporter within this state shall file an

application for a cigarette permit for each

place of business with the Division of

Alcoholic Beverages and Tobacco. . . .

* * *

(h) . . . Cigarettes may be p urchased for

retail purposes only from a person holding a

wholesale dealer permit. The invoice for

the purchase of cigarettes must show the

place of business for which the purchase is

made and the cigarettes cannot be

transferred to any other place of bus iness

for the purpose of resale.

20. Cebatien Dierestil admitted that the unstamped

packages of cigarettes found in the Food Mart during the

inspection on June 2, 2004, were offered for sale and were

purchased from an unidentified person who stopped by t he Food

Mart. He was unable to provide the Division with a receipt for

the purchase of the cigarettes. The clear and convincing

evidence is sufficient to meet the Division's burden of proving

that the Dierestils violated Sections 210.18(1) and

210.15(1)( h), Florida Statutes.

21. Based on the violations of Sections 210.18(1) and

210.15(1)(h), Florida Statutes, the Division is authorized by

Section 561.29(1) and (3) to revoke or suspend the Dierestils’

Series 2 - APS license for the Food Mart or to impose an

administrative fine "not to exceed $1,000.00 for violations

arising out of a single transaction." The Division has

promulgated penalty guidelines "which shall be imposed upon

alcoholic beverage licensees and permittees who are supervised

by the division. " The table included in Florida Administrative

Code Rule 61A - 2.022 provides that the penalty for a first -

occurrence violation of Sections 210.06(3) and 210.18, Florida

Statutes, is an administrative fine in the amount of $500.00,

plus payment of the excis e tax owing on the cigarettes. The

penalty specified for a first - occurrence violation of

Section 210.15(1)(b), Florida Statutes, for "[p]urchasing

cigarettes for purpose of resale from other than a licensed

wholesale dealer" is an administrative fine in t he amount of

$1,000.00. 2

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Business and

Professional Regulation, Division of Alcoholic Beverages and

Tobacco enter a final order

1. Dism issing Count 1 of the Administrative Action against

Cebatien and Marc Dierestil;

2. Finding that Cebatien and Marc Dierestil violated

Sections 210.18(1) and 210.15(1)(h), Florida Statutes;

3. Finding that, because of these statutory violations,

the Divis ion is authorized to impose administrative penalties on

Cebatien and Marc Dierestil pursuant to Section 561.29(1) and

(3), Florida Statutes;

4. Imposing an administrative fine in the amount of

$500.00 and ordering payment of the excise tax owing on the

un stamped packages of cigarettes for the violation of

Section 210.18(1), Florida Statutes; and

5. Imposing an administrative fine in the amount of

$1,000.00 for the violation of Section 210.15(1)(h), Florida

Statutes.

DONE AND ENTERED this 27th day of Janu ary, 2005, in

Tallahassee, Leon County, Florida.

S

___________________________________

PATRICIA HART MALONO

Administrative Law Judge

Di vision of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 96 75

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of January, 2005.

ENDNOTES

1 / All citations to the Florida Statutes herein are to the 2004

edition unless otherwise indicated.

2 / The correct statutory citation for this violati on is

Section 210.15(1)(h); Section 210.15(1)(b) deals with the

renewal of distributing - agent permits.

COPIES FURNISHED:

Captain Patrick Roberts

Department of Business and

Professional Regulation

5080 Coconut Creek Parkway, Suite C

Margate, Florida 33063 - 3942

Benjamin G. Snipes, Esquire

Department of B usiness and

Professional Regulation

Office of the General Counsel

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Cebatien Dierestil

Marc Dierestil

2519 North Andrews Avenue

Wilton Manors, Florida 33311

Leon Biegalski, General Counsel

Depart ment of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Jack Tuter, Director

Division of Alcoholic Beverages

and Tobacco

Department of Business and

Professional Regulation

1940 North Monroe Street

Tall ahassee, Florida 32399 - 2202

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 t hat will

issue the final order in this case.