vs. ) CASE NO. 82-3076
) SOL B. CORPORATION d/b/a HOLIDAY ) BEACH MOTEL, )
Respondent. )
Pursuant to notice, R. L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearings, conducted a formal hearing in this case on May 12 and 27, 1983, in Lauderhill, Florida.
For Petitioner: John A. Boggs, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondent: Charles L. Curtis, Esquire
Ft. Lauderdale, Florida 33316 ISSUES
Whether disciplinary action should be taken against respondent's alcoholic beverage license on charges of multiple sales of alcoholic beverages to minors; maintenance of a public nuisance at the licensed premises; conspiracy to violate the Beverage Law; improper surrendering of control of portions of licensed premises, contributing to the delinquency of a minor child; employment of an unapproved or unqualified employee; and refusing to allow an inspection of the licensed premises.
By separate notices to show cause, dated April 2, 1982 and January 15, 1983, petitioner Division of Alcoholic Beverages and Tobacco ("DABT") charged respondent Sol B. Corporation, doing business as Holiday Beach Motel ("respondent") with 24 counts of violating the Beverage Law, Chapters 561 and 562,. Florida Statutes (1981). DABT subsequently voluntarily dismissed counts
16 and 17 of the first notice to show cause, add count 1 of the second; the remaining counts have been renumbered 1-21.
Respondent disputed the charges and requested a hearing, after which this case was forwarded to the Division of Administrative Hearings for assignment of a Hearing Officer. Hearing was initially set for December 29-30, 1952. DABT's subsequent motion for continuance--unopposed by respondent-- was granted, and hearing was reset for March 17-18, 1983. At hearing on March 17, 1983, respondent's motion for continuance--opposed by DABT--was granted, good cause having been shown. Thereafter, hearing was reset for May 12-13, 1983. Final hearing, which began on May 12, 1983, was concluded on May 27, 1983.
At the outset of hearing, the parties recited a stipulation of facts.
Respondent moved to strike counts 7 and 18 (as subsequently renumbered); ruling was reserved pending issuance of this recommended order. For the reasons stated in the conclusions of law below, this motion is now granted.
DABT presented the testimony of Bruce Davis, Carla Biscardi, Craig Raymond, Troy Villar, Talal Hasan, Ralph Dyer, Lisa Garriga, Marsha Gibbons, Irving Streit, David Shomers, Michael D'Ambrosia, Richard Boyd, Susanne Sponder, Steven Genet, Richard A. Jones, and Stephen Silverberg. DABT Exhibit Nos. 127 1/
were received into evidence, as were respondent's Exhibit Nos. 1-5.
Both parties filed post-hearing proposed findings of fact and conclusions of law by June 13, 1983. A complete transcript of the hearing has not been filed.
Based on the evidence presented, the following facts are determined: FINDINGS OF FACT
At all times relevant to the charges, respondent Sol B. Corporation held alcoholic beverage license no. 16-637 S, Series 4-COP, and conducted business as the Holiday Beach Motel at 4111 South Ocean Drive, Hollywood, Florida. The licensed premises, as shown on the sketch filed with respondent's alcoholic beverage license, includes the motel, a lounge named "Finder's Lounge," a package store, and a grocery store named "Bridge Market."
At all times relevant to the charges, S. Michael Genet was president and sole officer of the respondent corporation. By agreement, he placed Sam Feingold in charge of Finder's Lounge, and placed Talal Hasan in charge of the package store and Bridge Market. The Bridge Market, as a separate entity, does not hold an alcoholic beverage license.
I.
During the last couple of years, DABT and the Hollywood Police Department received numerous complaints about the operation of Finder's Lounge from parents, businessmen, and law enforcement agencies. These complaints involved alleged sale of alcoholic beverages to minors, vandalism committed by patrons, excessive noise, and violence oh the licensed premises. Finder's Lounge has received previous warnings, both oral and written, concerning alleged sale of alcoholic beverages to minors on its premises. Young people have been attracted to the Finder's Lounge because the atmosphere and music is geared to their taste. Among young people, it gained a reputation as a place where underage persons (18 or younger) , particularly young girls, could obtain alcoholic beverages.
On July 17, 1981, Captain (then Lieutenant) Bruce Davis, accompanied by other officers of the Hollywood Police Department, went to Finder's Lounge to investigate alleged sales of alcoholic beverages to minors. Upon arrival he saw
20-30 young people coming out of the motel. He proceeded to the lounge door on the east side of the motel and announced the purpose of his visit. Stanley Feingold, father of the manager, Sam Feingold, physically blocked the doorway and barred his entry. When Stanley Feingold persisted, Captain Davis arrested him for obstructing passage. On this occasion, Stanley Feingold was acting as an agent of the respondent. He admitted that he was helping out his son at the lounge and--like other lounge employees--was wearing a red Finder's Lounge T- shirt. Captain Davis had seen him working at the lounge during his-previous visits.
On January 1, 1982, Captain Davis returned to Finder's Lounge to conduct another inspection. On his arrival, he saw a group of young people, apparently alerted by the doorman, walk to the nearby pool area of the motel. A few minutes later, he found them near the pool area, several holding cans of Budweiser beer or glasses containing drinks which smelled like alcohol. The young people were all 15 or 16 years old. He confiscated the alcoholic beverages and ordered them to leave. Just then, the rear door of Finder's Lounge opened and an employee, wearing a red Finder's Lounge T-shirt, asked the young people where they were going. Captain Davis warned him that he could be arrested for selling alcohol to minors, then proceeded to the front door carrying one of the alcoholic beverage containers which he had just seized. He warned both Sam and Stanley Feingold to cease selling alcohol to minors.
Stanley Feingold identified the container as the type used by Finder's Lounge. Moreover, it is improbable that the young people obtained the alcoholic beverages elsewhere. Finder's Lounge, which fronts the beach and is on a dead- end road, is the only lounge in the area.
Captain Davis then called other officers and began to check the identification of young people coming out the front door of the lounge. He smelled alcohol on the breath of at least five young people who appeared to be underage.
On June 16, 1981, Marsha Renee Gibbons, then 13 years old, went to Finder's Lounge with two friends. The doorman asked for identification. She replied that she didn't have any. The doorman remarked that she was cute, and told her to show him a comb or a brush. She showed him one or the other and he then let her enter. While on the premises, she later ordered, was served, and drank an alcoholic beverage (whiskey and Seven-Up) . No one other than the doorman asked for her identification.
On or about July 11, 1981, Troy Villar, then 17 years old, entered Finder's Lounge with two friends. The doorman asked for identification. Troy showed him a false identification card which contained a picture of a person who resembled him; the doorman failed to detect the discrepancy and he was allowed entry. Later, he purchased, was served, and drank an alcoholic beverage (rum and Coke) on the licensed premises.
On July 17, 1981, Lisa Garriga, then 17 years old, went to Finder's Lounge with friends. On the doorman's request, she showed him a valid Florida Driver's License which showed her true date of birth. After checking the driver's license, the doorman allowed her to enter. While there, she ordered, was served, and drank an alcoholic beverage (a Tom Collins) . No one, other than the doorman, checked her identification. On two other occasions during this same time period--when she was still 17 years old--she entered Finder's Lounge in like manner, then ordered, was served, and drank an alcoholic beverage.
On July 17, 1981, Craig Raymond, then 18 years old, entered Finder's Lounge. Craig made no attempt to evade or sneak by the doorman, who did not stop him or ask for identification. While there, Craig ordered, was served, and drank an alcoholic beverage (a beer).
On December 10, 1982, Jennifer Allison, then 17 years old and Victoria Pesce, then 16 years old, entered Finder's Lounge. Their identification was not requested or checked. While there, they each ordered, received, and drank an alcoholic beverage.
II.
On July 15, 1981, Beverage Officer David Shomers went to Finder's Lounge to investigate an anonymous complaint concerning alleged employment of a person under the age of 19. While there, he talked with the bartender who identified herself as Rhonda, later identified as Rlonda Nadeau. She told him that Skip Fredericks, also known as Sam Feingold, owned the bar. Officer Shomers identified himself and asked Rhonda to produce identification. She produced an identification card bearing her picture and the name of Karen Marko. When he questioned her about the discrepancy between her name (Rhonda Nadeau) and the name of Karen Marko, she admitted that her identification was false and that she had procured it in response to Sam Feingold's demand for proof of her age.
She then told Officer Shomers that she was 15 years old. There is, however, nothing in this record, other than hearsay evidence, which establishes that she was, in fact, under 18 years of age at the time she was employed as a bartender at Finder's Lounge.
III.
Because he was told that Finder's Lounge was owned by Sam Feingold, when DABT records showed ownership in Sol B. Corporation, Officer Shomers returned to the premises on July 15, 1981. He asked Sam Feingold to produce documentation showing ownership of the bar. During this conversation, Sam Feingold stated that he owned the lounge, that he paid all electric, water, sewer, liquor, beer, payroll, and equipment expenses relating to operation of the lounge, and that he paid all expenses from one checking account--for which his was the only authorized signature. (Later documentation confirmed that this checking account was, indeed, the operating account for Finder's Lounge.) He further admitted that he reimbursed Holiday Beach Motel for sales tax and withholding tax incurred by the lounge. Further, he used a printed business card which identified Skip Fredericks, a name by which he was also known, as the owner of Finder's Lounge. (P-16)
Sam Feingold began operating Finder's Lounge in December, 1980, and had remodeled the bar with a $25,000- 30,000 loan from Sol B. Corporation, secured with a mortgage on his father's (Stanley Feingold) house. Although there was no written agreement between Sam Feingold and Sol B. Corporation covering the operation of the lounge, Sam Feingold was responsible for paying all lounge operating expenses and paying Sol B. Corporation a monthly fee-- identified on check payments as "rent. " Sam Feingold had authority to hire-and fire all lounge employees and ran the lounge as he wished. In calculating his "break-even" point he added together the daily expenses, including "rent." (P- 18)
In August, 1981, after reviewing these records, Officer Shomers notified, in writing, Sol B. Corporation and Sam Feingold that their management scheme for Finder's Lounge was improper. Despite this notification, there was no change in the complained of management scheme until March or April, 1952, when Sam Feingold was terminated.
IV.
Beginning June 23, 1982, Talal Hasan was hired to manage the package store operation of Sol B. Corporation's Holiday Beach Motel. On that day, he also purchased from his cousin the Bridge Market, which is part of the Holiday Beach Motel. Respondent Sol B. Corporation's sketch of its licensed premises, filed with DABT, indicates that the Bridge Market is located on part of the premises where alcoholic beverages may be sold.
The Bridge Market has never had an alcoholic beverage license authorizing the sale of beverages on its premises. Yet Talal Hasan advertises "package liquors" on his signs outside the market. (P-20, P-21) The Bridge Market and the package store are adjacent to the Holiday Beach Motel. Initially, the stores were interconnected and not separated by any partition. Access from one to the other was unrestricted. Talal Hasan maintained one bank account for the operation of both, and his was the only authorized signature.
In late 1980, after DABT advised him that this arrangement was improper, Talal Hasan set up separate accounts for Bridge Market and the package store. But he remained the only person authorized to sign on each account. He maintained this practice until August, 1981, when Michael Genet was given signature authority on the package store account.
Under his arrangement with Sol B. Corporation, Talal Hasan was responsible for paying all expenses, including payroll, taxes, and worker's compensation insurance for both Bridge Market and the package store. As to the package store, he was allowed to retain all revenues remaining after paying expenses and a monthly fee to Sol B. Corporation.
In response to DABT's objection to free passage between Bridge Market and the package store, Talal Hasan installed a sliding glass door, with latch lock, separating the two. DABT advised that this glass door was inadequate, since it could be locked or unlocked, allowing free passage from the licensed premises (the package store) to an unlicensed premises (the Bridge Market) contrary to DABT rules. Yet Talal Hasan and Sol B. Corporation failed to place a permanent partition blocking free passage between the two stores.
In August, 1982, DABT notified respondent Sol B. Corporation of its intent to file administrative charges for improper surrender of control of its licensed premises-- Finder's Lounge to Sam Feingold, and the package store and Bridge Market to Talal Hasan. Mr. Hasan was told that he could sell alcoholic beverages in Bridge Market only if he first applied for and obtained an alcoholic beverage license. But when Mr. Hasan subsequently filed an application, DABT denied it because Bridge Market was part of the licensed premises of Sol B. Corporation, and notice had been given of intent to file administrative charges against that company. Approximately six months after Mr. Hasan filed his application, Sol B. Corporation filed an application to remove Bridge Market from the sketch (filed with DABT) of Sol B. Corporation's licensed premises. But this application, too, was denied on grounds that administrative charges were pending against Sol B. Corporation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Fla.Stat. (1951).
DABT is authorized to suspend or revoke an alcoholic beverage license for sale of an alcoholic beverage to a person under the age of 19, Sections
561.29 and 562.11; for conspiring to violate any provision of the Beverage Law, Section 562.23; for contributing to the delinquency of a minor child, Section 561.29, 827.04(3); for employment of a person prohibited from being employed by or working on the licensed premises, Section 561.29, 562.13; for improperly surrendering control of the licensed premises, Section 561.29, Rule 7A-3.17, Florida Administrative Code; for refusing to allow an investigating officer on the premises, Sections 562.41(3), 561.29; and for maintaining a public nuisance on the licensed premises, Sections 561.29, 823.01, 823.05.
License revocation proceedings, such as this, are penal in nature.
The prosecuting agency must prove its charges by clear and convincing evidence-- by evidence as substantial as the consequences. See, Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966); Walker v. State, 322 So.2d 612 (Fla. 2d DCA 1975); Bowling v. Dept. of Insurance, 394 So.2d 165, 172 (Fla.
1st DCA 1981)
As DABT acknowledged in its post-hearing submittal, no evidence was submitted concerning counts 1, 3, 5, 6, and 14. These charges must, therefore, be dismissed. DABT also acknowledges that the evidence is legally insufficient to prove count 4, concerning an alleged sale of alcoholic beverages to Troy Villar; count 8, contributing to the delinquency of a minor by employing Rhonda Nadeau; and count 9, concerning alleged conspiracy to violate the Beverage Law by employing Rhonda Nadeau as a bartender. These charges, too, must therefore be dismissed. Moreover, the evidence is legally insufficient to establish that Rhonda Nadeau was employed as a bartender at Finder's Lounge when she was under the age of 18, so count 10 must also be dismissed.
As mentioned earlier, respondent's motion to strike counts 7 and 18 (as renumbered) must be granted. These counts allege that Sol B. Corporation, through Michael Genet, conspired with Sam Feingold and Talal Hasan to violate Beverage Rule 7A-3.17 and Section 562.23, Florida Statutes (1981). But under 562.23, a conspiracy to violate the Beverage Law can exist only if the acts to be done would be a misdemeanor under the provisions of the Beverage Law. "Beverage Law" is defined by Section 561.01(6) to mean Chapters 561, 562, 563, 564, 565, 567, and 565. Thus, "Beverage Law," as used in Chapters 561 and 562, does not include DABT administrative rules. Violation of a DABT rule does not necessarily constitute violation of the "Beverage Law." Applying the maxim that penal statutes must be strictly construed, Lester v. Department of Professional and Occupational Regulation, 348 So.2d 923 (Fla. 1st DCA 1977), it must be concluded that a licensee cannot be disciplined for conspiring to violate a DABT rule.
The evidence does, however, convincingly prove counts 11 and 19, violation of Rule 7A-3.17, Florida Administrative Code by surrendering control of Finder's Lounge to Sam Feingold and the package store and Bridge Market to Talal Hasan; counts 2, 13, 15, 16, 20, and 21, violation of Section 562.11 by repeatedly permitting persons underage to buy, possess, and consume alcoholic beverages; count 12, violation of Sections 562.41(3) and 561.29 by refusing to allow entry of a law enforcement officer for a beverage inspection; and count
17, violation of Sections 561.29, 823.01, and 823.05 by maintaining a public nuisance of the licensed premises.
Repeated violations of the Beverage Law are sufficient to support an inference that the violations were either fostered, condoned, or negligently overlooked by the licensee. See, Pauline v. Lee, 147 So.2d 359 (Fla. 2nd DCA 1962), cert. den. 156 So.2d 359 (Fla. 1963); Lash Inc. v. Department of Business Regulation, 411 So.2d 276 (Fla. 3rd DCA 1982). Such an inference can support license revocation. See, Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1977) . The frequency of these Beverage Law violations, their seriousness, and the persistent manner in which they were committed, particularly the sale of alcoholic beverages to minors, is sufficient to support an inference that respondent condoned or negligently overlooked their commission. Accordingly, revocation of respondent's alcoholic beverage license is warranted.
The parties' proposed recommended orders, containing findings of fact, have been considered in preparing this recommended order. To the extent the parties' proposed findings of fact were consistent with the weight of credible evidence adduced at hearing, they have been adopted and are reflected in this recommended order. To the extent that the findings were not consistent with the weight of credible evidence, they have been either rejected or, when possible, modified to conform to the evidence. Additionally, proposed findings which are subordinate, cumulative, immaterial, or unnecessary, have not been adopted.
That respondent's alcoholic beverage license no. 16-637 S, Series 4-COP, be revoked for multiple violations of the Beverage Law.
DONE and ENTERED this 5th day of August, 1983, in Tallahassee, Florida.
R. L. CALEEN, JR. Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1983.
1/ Petitioner's Exhibit Nos. will be referred to as "P- "; Respondent's Exhibit Nos. will be referred to as "R- ."
John A. Boggs, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Charles
L. Curtis, Esquire 1177 S.E. 3rd Avenue
Ft. Lauderdale, Florida 33316
Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Howard M. Rasmussen, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco
