STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 81-3230

) 2800 E.L.O.B. BEVERAGES SERVICES,) INC., d/b/a ART STOCK'S PLAYPEN ) ON THE BEACH, )

)

Respondent. )

)

RECOMMENDED ORDER

For Petitioner: James N. Watson, Jr., Esquire

725 South Bronough Street Tallahassee, Florida 32301

For Respondent: None

ISSUE

Whether respondent's alcoholic beverage license should be disciplined on the charge that it violated Sections 212.15(2)(b) and 561.29(1)(a), Florida Statutes (1981), by failing to remit taxes collected pursuant to Chapter 212, Florida Statutes (1981).

BACKGROUND

Petitioner Division of Alcoholic Beverages and Tobacco ("DABT") filed a notice to show cause charging respondent 2800 E.L.O.B. Beverages Services, Inc., d/b/a Art Stock's Playpen on the Beach ("respondent") with "fail[ing] to remit taxes collected pursuant to Chapter 212 of the Florida Statutes with intent to deprive or defraud the State of Florida of it's [sic] monies, or the use thereo, which are in excess of $100.00, in violation of F.S. 212.15(2)(b) within F.S. 561.29(1)(a)."

On or about October 26, 1981, Roman Moreth, as secretary of the corporate respondent, requested a hearing on the charge. Thereafter, this case was referred to the Division of Administrative Hearings for assignment of a hearing officer.

Hearing was set for January 26, 1982. At the outset of hearing, Roman Moreth, representing respondent, moved for a continuance, contending that he was unprepared and needed additional time to retain counsel. The motion was granted, and hearing was reset for April 20, 1982. On motion of both parties, hearing was again continued and reset for August 24, 1982.

On August 23, 1982, Roman Moreth, on behalf of respondent, moved, ore tenus, for a continuance on the ground that he had not received a copy of the prior order setting the hearing and was unprepared to present respondent's case. The motion was granted, and hearing was reset for September 7, 1982.

At hearing, DABT called Richard A. Boyd and Bernard F. Fox as its witnesses; Petitioner's Exhibit 1/ Nos. 1 and 2 were received into evidence, and the notice to show cause was made part of the record. Respondent made no appearance at hearing.

The hearing was scheduled to begin at 1:00 p.m. on September 7, 1982. By 2:30 p.m., respondent neither appeared nor made any written or oral request to delay or continue the hearing. DABT then proceeded to present its case.

Based on the evidence presented, the following findings of fact are determined:

FINDINGS OF FACT

1. On May 4, 1981, respondent was issued alcoholic beverage license No.

   16-2232 SRX, Series 4 COP. The license has now expired. (Testimony of Boyd; P- 1.)

   
   

2. On June 26, 1951, the Florida Department of Revenue issued a warrant for the collection of delinquent sales and use tax due and unpaid by respondent. The warrant states that respondent is indebted to the Department of Revenue for delinquent sales tax, penalty, and interest, totaling $22,710.66. This indebtedness remains outstanding and unpaid. (Testimony of Fox; P-2.)

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. 120.57(1), Fla. Stat. (1981).

   
   

4. Section 561.29(1)(a), Florida Statutes (1981), empowers DABT to revoke a beverage license if the licensee, while in the scope of employment-; violates any of the laws of Florida.

5. Section 212.15(2), Florida Statutes (1981), makes it a crime for Any person who, with intent to unlaw

   fully deprive or defraud the state of its moneys or the use or benefit thereof, fails to remit taxes collected pursuant to this chapter . . . .

   
   

6. However, respondent's beverage license has now expired. An expired license is a nullity which cannot be acted against or disciplined by DABT. Accordingly, the notice to show cause must be dismissed.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the notice to show cause filed against respondent be dismissed.

DONE AND RECOMMENDED this 15th day of September, 1982, in Tallahassee, Florida.

R. L. CALEEN, JR. Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1982.

ENDNOTES

1/ Petitioner's Exhibits will he referred to as "P- ."

COPIES FURNISHED:

James N. Watson, Jr., Esquire Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32301

Roman Moreth

3002 Northeast 19 Street

Fort Lauderdale, Florida 33305

Richard A. Boyd Division of Beverage Post Office Box 8276

Lauderhill, Florida 33310

Charles A. Nuzum, Director Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 81-003230

Orders for Case No: 81-003230