08-005045 Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco vs. Mayra N. Vazquez, D/B/A Mi Gente Market Status: Closed Recommended Order on Monday, January 5, 2009.

Summary: Licensee offered illegal cigarettes and wine for sale. Recommend the penalty of administrative fine and upaid cigarette excise tax.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 08-5045

)

MAYRA N. VAZQUEZ, d/b/a MI GENTE MARKET, )

)

)

Respondent. )

)

RECOMMENDED ORDER

On December 4, 2008, a formal administrative hearing in

this case was held in Sarasota, Florida, before William F.

Quattlebaum, Administrative Law Judge, Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Michael John Wheeler, Esquire

Department of Business and

Professional Regulation

Northwood Center, Suite 40

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: (No appearance)

STATEMENT OF THE ISSUES

The issues in this case are whether the allegations of the

Administrative Action are correct, and, if so, what penalty

should be imposed.

PRELIMINARY STATEMENT

By Administrative Action dated July 3, 2008, the Department

of Business and Professional Regulation, Division of Alcoholic

Beverages and Tobacco (Petitioner), alleged that Mayra N.

Vazquez, d/b/a Mi Gente Market (Respondent), possessed and sold

cigarettes and alcohol that did not comply with various

licensing and tax requirements. The Respondent disputed the

allegations and requested a formal administrative hearing. By

letter dated October 10, 2008, the Petitioner forwarded the

matter to the Division of Administrative Hearings, which

scheduled and conducted the hearing.

The Respondent made no appearance at the hearing. The

Petitioner presented the testimony of one witness and had one

exhibit admitted into evidence. At the conclusion of the

Petitioner’s case presentation, the Petitioner moved to deem

admitted all matters addressed in the Petitioner’s First Request

for Admissions dated October 22, 2008. The request had advised

the Respondent that a failure to respond within 30 days of the

request could result in the matters being deemed admitted. The

Respondent failed to respond. The Administrative Law Judge

granted the motion. The Findings of Fact set forth herein are

based upon the admissions and testimony presented during the

hearing.

No transcript of the hearing was filed. The Petitioner

filed a Proposed Recommended Order on December 10, 2008.

FINDINGS OF FACT

1. At all times material to this case, the Respondent was

the operator of Mi Gente Market and held Florida license number

BEV6803562, Series-2APS. The license permitted the Respondent

to sell packaged beer, wine, and tobacco products.

2. An investigator employed by the Petitioner entered Mi

Gente Market on April 18, 2008, while conducting an

investigation into the sale and distribution of alcoholic

beverages by Azteca Imports, LLC.

3. Azteca Imports, LLC, is not licensed to sell or

distribute alcoholic beverage products in Florida.

4. The investigator observed two one-liter bottles of

"Tres Coronas Mexican Sherry Wine" available for sale at Mi

Gente Market.

5. Upon inquiry, Cornelio Reyes-Vazquez, a relative and

employee of Mayra N. Vazquez, stated that the Tres Coronas wine

had been purchased from Azteca Imports, LLC.

6. The investigator also observed approximately

115 packages of “Belmont” cigarettes available for sale at Mi

Gente Market.

7. The Belmont cigarette packages did not have State of

Florida excise tax stamps.

8. Cornelio Reyes-Vazquez admitted to the investigator

that the cigarettes had been purchased from an unregistered

distributor.

9. The Florida excise tax for cigarettes is 33.9 cents per

pack. The total unpaid excise tax for the Belmont cigarettes at

Mi Gente Market is $38.98.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2008).

11. The Petitioner has the burden of establishing the

allegations of the Administrative Complaints by clear and

convincing evidence. Department of Banking and Finance v.

Osborne Stern and Company , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987). The burden has been

met.

12. Subsection 561.29(1)(a), Florida Statutes (2007),

provides 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 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 licensed 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 be considered in

proceedings before the division for

suspension or revocation of a license except

as permitted by chapter 92 or the rules of

evidence. (Emphasis supplied)

13. Section 562.01, Florida Statutes (2007), provides as

follows:

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.

14. Subsection 561.14(3), Florida Statutes (2007),

provides as follows:

561.14 License and registration

classification.--Licenses and registrations

referred to in the Beverage Law shall be

classified as follows:

* * *

(3) Vendors licensed to sell alcoholic

beverages at retail only. No vendor shall

purchase or acquire in any manner for the

purpose of resale any alcoholic beverages

from any person not licensed as a vendor,

manufacturer, bottler, or distributor under

the Beverage Law. Purchases of alcoholic

beverages by vendors from vendors shall be

strictly limited to purchases between

members of a pool buying group for which the

initial purchase of the alcoholic beverages

was ordered by a pool buying agent as a

single transaction. No vendor shall be a

member of more than one cooperative or pool

buying group at any time. No vendor shall

import, or engage in the importation of, any

alcoholic beverages from places beyond the

limits of the state. (Emphasis supplied)

15. An excise tax is charged on each pack of cigarettes

sold in Florida, and a stamp is placed on each package to

document payment of the tax. Subsection 210.18(1), Florida

Statutes (2007), provides that is it illegal for any person to

sell or offer for sale unstamped packages of cigarettes.

16. Subsection 210.65(2), Florida Statutes (2007),

provides that it is illegal for a retailer to purchase tobacco

products from an unlicensed vendor.

17. The uncontroverted evidence establishes that the

Respondent offered for sale alcoholic beverages obtained from an

unlicensed dealer. The evidence also establishes that the

Respondent obtained, from an unlicensed vendor, tobacco products

which lacked tax stamps.

18. Florida Administrative Code Rule 61A-2.022 sets forth

the penalties applicable to this case. The Respondent has no

previous disciplinary history. The rule provides a penalty of

$1,000.00 for a violation of Section 562.01, Florida Statutes;

$1,000.00 for a violation of Subsection 564.14(3), Florida

Statutes; $1,000.00 for a violation of Subsection 210.65(2),

Florida Statutes; and a penalty of $500.00 and payment of the

unpaid excise tax. There is no evidence indicating that any

variance from the rule is warranted.

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 finding Mayra N. Vazquez, d/b/a Mi

Gente Market, in violation of the statutes referenced herein and

imposing an administrative fine of $3,500.00 plus applicable

excise tax of $38.98 for a total fine of $3,538.98.

DONE AND ENTERED this 5th day of January, 2009, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 5th day of January, 2009.

COPIES FURNISHED :

Michael John Wheeler, Esquire

Department of Business and

Professional Regulation

Northwood Center, Suite 40

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Mayra N. Vazquez

Mi Gente Market

1155 G N Washington Boulevard

Sarasota, Florida 34236

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

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

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.