Tampa Wholesale Liquors, Inc. v. Division of Alcoholic Beverages and Tobacco, Dept. of Business Regulation, 79-294

• Decision Date: 26 October 1979
• Docket Number: No. 79-294,79-294
• Citation: 376 So.2d 1195
• Parties: TAMPA WHOLESALE LIQUORS, INC., Petitioner, v. DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, DEPARTMENT OF BUSINESS REGULATION, State of Florida, Respondent.
• Court: Florida District Court of Appeals

Page 1195

376 So.2d 1195

TAMPA WHOLESALE LIQUORS, INC., Petitioner, v. DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, DEPARTMENT OF BUSINESS REGULATION, State of Florida, Respondent.

No. 79-294.

District Court of Appeal of Florida, Second District.

Oct. 26, 1979.

Rehearing Denied Nov. 29, 1979.

Michael N. Brown, of Allen, Dell, Frank & Trinkle, Tampa, for petitioner.

Mary Jo M. Gallay, Staff Atty., Dept. of Business Regulation, Tallahassee, for respondent.

HOBSON, Judge.

Petitioner, Tampa Wholesale Liquors, Inc., seeks review of a final order of the Division of Alcoholic Beverages and Tobacco which held that Tampa Wholesale was guilty of violations of Sections 561.14 and 562.23, Florida Statutes. In so holding, the agency director rejected the hearing officer's findings of fact and conclusions of law as well as his recommendation that no action be taken against Tampa Wholesale. Tampa Wholesale argues that the agency may reject the hearing officer's recommended order only in limited circumstances as set out in Section 120.57(1)(b)(9), Florida Statutes, which provides:

"The agency may adopt the recommended order as the agency's final order. The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order, But may not reject or modify the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The agency may accept or reduce the recommended penalty in a recommended order, but may not increase it without a review of the complete record." (emphasis added)

Appellant's argument is correct and, pursuant to Section 120.68, Florida Statutes (1978), we must set aside the agency action in this case.

The record on appeal reveals the following facts: The Division of Alcoholic Beverages and Tobacco issued a notice to show cause why Tampa Wholesale's license After a complete hearing, the hearing officer issued his recommended order absolving Tampa Wholesale from any wrongdoing and specifically finding that no sale of alcoholic beverages took place between Tampa Wholesale and Mullen. The hearing officer further recommended that no action be taken against Tampa Wholesale.

should not have a civil penalty assessed against it or be suspended or revoked. The notice alleged that Tampa Wholesale, its agent, servant or employee, sold or allowed to be sold, sacramental wines to one other than a licensee. The notice further charged that Tampa Wholesale conspired with Mullen Religious Supplies to sell alcoholic beverages to Mullen for purpose of resale without Mullen having obtained a license.

HEARING OFFICER'S FINDINGS OF FACT

Tampa Wholesale is the holder of a distributor's license to distribute alcoholic beverages. Prior to March 24, 1976, and under the authority of that license, Tampa Wholesale engaged in a series of business transactions whereby sacramental wines were ultimately sold to various authorized religious consumers in Tampa Wholesale's marketing area. Mullen Religious Supplies acted as agent on behalf of Tampa Wholesale. Mullen and Tampa Wholesale used the following procedures to consummate the transactions: Mullen would take orders from customers for sacramental wines and would assist the customer in filling out its permit application forms. That form would be sent to the Department of Alcoholic Beverages and Tobacco and an order form would be sent to Tampa Wholesale. At this point Mullen's involvement terminated, except to receive its commission from Tampa Wholesale at a later date. Tampa Wholesale bought and stored the wine. On receipt of the order, it shipped the wine directly to the consumer, along with the bill. The consumer paid Tampa Wholesale and Tampa Wholesale then paid Mullen its commission. This procedure did not differ from that employed by Tampa Wholesale with its individual wine salesmen, except for the fact that no Social Security was withheld from the corporate representative. The recommended order stated:

"There is a complete absence of evidence to establish that Mullens paid, or promised to pay, Tampa Wholesale any money or that any such obligation ever arose. There is no evidence to establish that title to any wine ever transferred from Tampa Wholesale to Mullens."

HEARING OFFICER'S CONCLUSIONS OF LAW

The Florida Uniform Commercial Code definition of "sale" is dispositive of the proceedings. Section 672.2-106, Florida Statutes, defines "sale" as the "passing of title from the seller to the buyer for a price." Title to the sacramental wines did not pass from Tampa Wholesale to Mullen, but rather directly to the consumer. Further, there was no "price" as between Tampa Wholesale and Mullen. The "price" was paid directly to Tampa Wholesale from the consumer and Mullen received only a commission. Thus, there was no "sale" between Tampa Wholesale and Mullen.

AGENCY DIRECTOR'S FINDINGS OF FACT

The hearing officer disregarded a substantial portion of the testimony in evidence which attested to the marketing participation by Mullen Religious Supplies in greater depth than would a mere "sales agent." The pricing of the sacramental wines showed that Mullen's selling price was quoted at a significantly higher rate than the on-shelf cost to Tampa Wholesale. Mullen participated directly with Tampa Wholesale and the wineries in determining the prices of the wines sold; these negotiations were not within the province of a liquor...