STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 77-2249

) SUNRISE EMBASSY LOUNGE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Lauderhill, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on June 15, 1978. The hearing reconvened in Tallahassee, Florida, on December 12, 1978, for the taking of testimony in mitigation and aggravation. The parties were represented by counsel:

For Petitioner: Dennis E. LaRosa, Esquire

Staff Attorney

725 South Bronough Street Tallahassee, Florida 32304

For Respondent: Robert C. Stone, Esquire

Center Court Building

2450 Hollywood Boulevard, Suite 400

Hollywood, Florida 33020

By notice to show cause, petitioner alleged that respondent "[o]n or about the 13th of September, 1977, . . . failed to discontinue the sale of alcoholic beverages, when the service of full course meals had been discontinued, contrary to Administrative Rule 7A-3.15 . . .;" that respondent's employee "ROBERT H. CLOSE did refuse, hinder or forcibly obstruct an authorized employee . . . [of petitioner] EMIL MARRERO from executing the power or authority vested in him by law, contrary to F.S. 562.41;" that respondent "failed to maintain a license premise [sic] which was sanitary and not [sic] approved as sanitary by the County Board of Health . . . contrary to Florida Statutes 561.29(1)(D);" that respondent "[o]n or about the 14th of September, 1977, . . . failed to discontinue the sale of alcoholic beverages, when service of full course meals had been discontinued; that respondent "[o]n or about the 16th of September, 1977, . . . failed to comply with . . . [petitioner's] Official Notice and/or Director's Order dated the 13th day of September, 1977, by not producing business records, contrary to F.S. 561.11;" and that respondent "failed to allow

. . . [petitioner] to examine into . . . [its] business, books, records, and/or accounts . . . contrary to F.S. 561.29, 561.07, and 562.41."

The notice to show cause also alleged that respondent had in its "possession, and/or on [its] licensed premises, cigarettes . . . without properly affixed stamps, contrary to F.S. 210.06(3) to wit F.S. 561.29; . . .

[and that respondent's] employee, MARGARET F. LEWIS, did have in her possession a lottery ticket . . . in violation of Florida Statutes 849.09(1h) and Florida Statutes 561.29(A);" At the close of the taking of evidence on June 15, 1978, however, in the course of unreported argument, petitioner's counsel abandoned the allegations that respondent and/or its employees had possession of lottery tickets and/or untaxed cigarettes.

FINDINGS OF FACT

1. Respondent holds license No. 16-816-SR, 4-COP, which is a special restaurant license.

   
   

2. At about quarter of ten on the morning of September 13, 1977, Emil Marrero, James F. McAuley and Joe L. Nato, all of whom were then beverage officers, arrived at respondent's place of business. Officer Marrero purchased a fifth of rum from Elizabeth Boyd, who was behind the counter in the package store portion of respondent's premises. Ms. Boyd told Officer Marrero that, if he wanted a meal, he "would have to go to the kitchen around the building." (T29). Officers Marrero and Mato went outside the building in search of the kitchen but found the back door to the kitchen locked, Back inside, officer Nato discovered some slips of paper and cigarette packages that lacked tax stamps. Then respondent's employee Margaret Faye Lewis was asked where the kitchen was, she pointed to a padlocked door which John Davis, another of respondent's employee unlocked for the beverage officers. With some difficulty, the beverage officers located the kitchen, where they found respondent's cook, James Dowling. In response to the officers' questions, Mr. Dowling said that he had opened the kitchen that morning at quarter or half past ten as he customarily did seven days a week; that he ordinarily closed the kitchen at four in the morning; and that the business was open for the sale of liquor from seven in the morning till two the following morning.

   
   

3. Officer Marrero wrote out a statement for Mr. Bowling's signature reciting the opening and closing times Mr. Dowling had related to him. Petitioner's exhibit No. 3. At this point, Robert H. Close, respondent's president, appeared and asked to read the statement, after which he said:

   
   

   These are a bunch of fucking lies. The restaurant is open at 7:00 A.M. in the morning. You have got no fucking right coming in here and telling my employees to sign anything. (T54)

   
   

   As a result of this outburst, Mr. Dowling declined to sign the statement Officer Marrero had prepared; and an argument between Mr. Close and Officer Marrero ensued.

   
   

4. On respondent's premises, Officer McAuley counted "153 chairs, 32 2' by 2' tables, 36 cocktail tables and two tables capable of seating four people." Petitioner's exhibit No. 9. He found 43 spoons in the kitchen along with various victuals. Officer Marrero never actually requested a meal of any of respondent's employees. Once he had identified himself as a beverage officer, he testified, he "imagine[d] a roach in the corner would have jumped up and served [him] a meal if [he] so desired to have one." (T71). Although not assigned to the kitchen, Mr. Davis and Mrs. Lewis were available, before Mr. Dowling's arrival on September 13, 1977, to cook for respondent's patrons. Mrs. Lewis testified without contradiction that a full course meal could have been prepared if one had been requested. (T87).

5. On September 13, 1977, "the Broward County Health Department . . . cited the [respondent] for being in violation of certain sanitary codes established by the State or County." Petitioner's exhibit No. 6. See petitioner's exhibit No. 4. On the same day, on behalf of petitioner, Officer Marrero gave respondent official, written notice that it had "been closed by the county health department & any further sale of alcoholic beverages without maintaining the SR requirement is in violation of [law]." Petitioner's exhibit No. 5. On the following day, Officers Marrero, McAuley and Mato returned to respondent's premises and waited outside while Officer Bates went in and, at twenty past two in the afternoon, bought a bottle. After Officer Bates' purchase, respondent was charged with "selling alcoholic beverages, being closed down by the Health Department." (T63).

   
   

6. At three o'clock on the afternoon of September 14, 1977, representatives of the Broward County Health Department inspected respondent's premises and lifted the closure order, at the conclusion of the inspection. Although Mr. Close testified otherwise, respondent served no food on September 14, 1977, before the closure order was lifted. Respondent sold alcoholic beverages on September 14, 1977.

   
   

7. On September 13, 1977, Officer McAuley asked Margaret Lewis if "the records" were on the premises. She answered affirmatively and led Officer McAuley to certain invoices and other records which he reviewed briefly. Later he asked Mr. Close "for all the invoices pursuant to the rule;" (T97) and Mr. Close was "requested . . . by official notice . . . [to] produce all documents concerning the operation of his business . . . (T123). In response to this request, Mr. Close furnished the beverage officers all of respondent's records then on the premises. Not on the premises were liquor invoices and other records dated on and after September 1, 1977, and invoices reflecting purchases of food. These records were at respondent's bookkeeper's at the time of the beverage officers' visit on September 13, 1977, but had been returned to respondent's premises by the time beverage officers returned on September 14, 1977. On September 13, 1977, the beverage officers left with all the records respondent had furnished. The beverage officers did not inquire about the additional records on September 14, 1977, and respondent's employees did not mention them at that time. Respondent's employees never took the additional records to petitioner's office.

   
   

8. Robert Close gained control of respondent and respondent's license in 1968. On April 13, 1970, respondent paid a stipulated civil penalty of one hundred dollars ($100.00), because a patron bought liquor in the package store portion of respondent's premises and shared it with a minor in the lounge portion of respondent's premises. On March 2, 1971, respondent paid a civil penalty of one hundred fifty dollars ($150.00) in connection with an alleged violation of Rule 7A-3.15(b), Florida Administrative Code. On July 2, 1975, respondent paid a civil penalty of seventeen hundred fifty dollars ($1,750.00) after a notice to show cause alleged the following matters:

   
   

   1. On the 19 day of July 1973, on your licensed premises, SUNRISE EMBASSY LOUNGE, FREDDY THOMAS, your agent, servant or employee, did sell to

      Agent L. LAWSON BROWARD COUNTY SHERIFFS

      OFFICE, for the sum and consideration of $20.00 U.S. Currency, a quantity of narcotics, to wit Heroin. This

      being in violation of F. S. 893.13 (1A1).

   2. On or about September 21, 1973, on the above described premises, you,

      your agent, servant or employee did continue the sale of alcoholic beverages when the service of full course meals had been discontinued, in violation

      of Florida Alcoholic Beverage Rule 7A-3.15.

   3. On or about September 21, 1973 on the above described premises, you failed to maintain necessary china

      and table ware to serve 200 persons, in violation of Florida Alcoholic Beverage rule 7A-3.15(e).

   4. On or about October 17, 1973 investigation revealed that you, SUNRISE EMBASSY LOUNGE INC.,

      D/B/A SUNRISE EMBASSY LOUNGE,

      did fail to submit within 10

      days a certified copy of minutes of stockholders meeting at which a change of officers was effected, in violation of Florida Alcoholic Rule 7A-2.07(2).

   5. On or about September 21, 1973 investigation revealed that on August 8, 1973, August 30, 1973, September 6, 1973, September 13, 1973, you, SUNRISE EMBASSY LOUNGE, INC., D/B/A SUNRISE EMBASSY LOUNGE did fail to maintain the sanitary code of Florida, in violation of F. S.

      381.031 and chapter 100.13 FAC Sanitary Code of Florida.

      
      

      On October 15, 1975, respondent paid a civil penalty in the amount of two hundred fifty dollars ($250.00) for failure to disclose to petitioner a change in its corporate officers.

      
      

9. Respondent employs seven or eight persons. Rule 7A-3.15(b) Florida Administrative Code, for alleged violations of which respondent paid civil penalties, has since been adjudged inapplicable to licenses like respondent's. Thayer v. State, 335 So.2d 815 (Fla. 1976).

   
   

   CONCLUSIONS OF LAW

   
   

10. Licensees like respondent "must discontinue the sale of alcoholic beverages whenever the service of full course meals is discontinued." Rule 7A- 3.15, Florida Administrative Code. The evidence showed that respondent sold a bottle of rum on September 13, 1977, at a time when the kitchen was closed and locked. This is a violation of Rule 7A-3.15, Florida Administrative Code.

    
    

11. "Any person who shall forcibly obstruct or hinder [an employee of petitioner] in the execution of any power or authority vested in him by law . .

    . shall be guilty of a misdemeanor Section 562.41(4), Florida Statutes (1977). But Mr. Close's interference with officer Marrero's interrogation of Mr.

    Dowling, while regrettable, was verbal only. It did not constitute a violation of the statute for that reason.

    
    

12. Petitioner has authority to take disciplinary action against licenses it issues when the "licensed premises . . . are unsanitary, or are not approved as sanitary by the county board of health or the Department of Health and Rehabilitative Services.

    
    

13. Section 561.29(1)(d), Florida Statutes (1977). The evidence showed that respondent's premises were "not approved as sanitary" for some twenty-four

    (24) hours, thereby establishing grounds for disciplinary action pursuant to Section 561.29, Florida Statutes (1977).

    
    

14. There was evidence that one Officer Bates (who did not himself testify) "purchased a bottle" (T70) on the afternoon of September 14, 1977, before the health authorities inspected, but the bottle was not offered in evidence and its contents, if any, were not described in the testimony. Even though the evidence as a whole established that full course meals were not served till the health authorities' inspection had been completed and even though respondent's president conceded that alcoholic beverages were sold on September 14, 1977, the evidence did not establish that the sale of alcoholic beverages on September 14, 1977, took place before full course meals became available again.

    
    

15. There was no evidence that respondent, any of its agents or employees, intentionally withheld any books or records from petitioner. The official notice dated September 13, 1977, was not offered in evidence and its precise language was not proven. As far as the evidence disclosed, respondent's having all records not already in petitioner's custody on hand for inspection on September 14, 1977, constituted compliance with the request of September 13, 1977.

    
    

16. In summary, the evidence established that respondent was guilty of two distinct violations which constitute grounds for action against its license.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner impose a civil penalty against respondent's license in the amount of two thousand dollars ($2,000.00).

DONE and ENTERED this 11th day of January, 1979, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Dennis E. LaRosa, Esquire Staff Attorney

725 South Bronough Street Tallahassee, Florida 32304

Robert C. Stone, Esquire

Suite 400, Center Court Building 2450 Hollywood Boulevard

Hollywood, Florida 33020

Docket for Case No: 77-002249

Orders for Case No: 77-002249