STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS REGULATION) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2657

) SLOANE'S BAR-B-Q, INC., D/B/A ) SLOANE'S BAR-B-Q, STEAKS AND ) SEAFOOD, )

)

Respondent. )

) DEPARTMENT OF BUSINESS REGULATION) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2658

) STRICKLAND'S MAYPORT INC D/B/A ) STRICKLAND'S MAYPORT, RESTAURANT )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above cases before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on October 20, 1983, in Jacksonville, Florida.

APPEARANCES

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

725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Mr. Frank Piehl

4738 Ocean Street

Mayport, Florida 32233 BACKGROUND

By Notices to Show Cause issued on June 24, 1983, Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, has alleged that Respondents, Sloane's Bar-B-Q, Inc., d/b/a Sloane's Bar-B-Q, Steaks and Seafood and Strickland's Mayport, Inc., d/b/a Strickland's Mayport, were guilty

of violating Section 561.29, Florida Statutes, by having failed to file a sales tax return and having failed to pay taxes due the Department of Revenue.

On August 3, 1983, Respondents requested a formal hearing to contest the allegations pursuant to Subsection 120.57(1), Florida Statutes. The matter was referred by Petitioner to the Division of Administrative Hearings on August 19, 1983, with a request that a hearing officer be assigned to conduct a formal hearing.

By notice of hearing dated September 6, 1983, the matters were scheduled for a final hearing on October 20, 1983, in Jacksonville, Florida. At the final hearing Respondents stipulated that the factual allegations in the Notices to Show Cause were correct and that they had indeed failed to timely file the required sales tax returns and to pay the concomitant sales and use taxes to the Department of Revenue. They also stipulated that tax liens had been placed on their properties in late 1982 and 1983. Because of the foregoing stipulation, Petitioner presented no witnesses. It offered Petitioner's exhibits 1-4; all were received in evidence. Respondents presented the testimony of Frank Piehl, comptroller of both corporations.

The issue herein is whether Respondents are guilty of the allegations in the Notices to Show Cause and should have their beverage licenses disciplined.

Based upon all the evidence the following Findings of Fact are determined: FINDINGS OF FACT

1. Respondent, Sloane's Bar-B-Q, Inc., d/b/a Sloane's Bar-B-Q, Steaks and Seafood, is the holder of license number 26-703, license series 2-COP, issued by Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division). The business is located at 9202 Baymeadows Road, Jacksonville, Florida.

   
   

2. Respondent, Strickland's Mayport, Inc., d/b/a Strickland's Mayport, is the holder of license number 26-779-SRY, license series 4-cop, issued by Petitioner. It is located at 4738 Ocean Street, Mayport, Florida.

   
   

3. Respondents are required by Chapter 212, Florida Statutes, to file periodic sales tax returns with the Department of Revenue and to pay the sales and use taxes associated with those returns. They failed to do so and tax liens were placed on their licensed premises in late 1982 and early 1983.

   
   

4. Respondents acknowledged that they were delinquent in filing their returns and paying the required taxes but pointed to a severe casualty loss in July, 1982 which caused severe financial problems. During that month, a floating restaurant at Mayport sunk at a loss of several hundred thousand dollars. They eventually settled with the insurance company for $300,000. To date, they have not collected the entire settlement. The loss has caused a serious cash flow problem which in turn has resulted in their present problems with the State.

   
   

5. Respondents have met with Department of Revenue officials who agreed to accept payment of the delinquent taxes in six monthly installments beginning on September 1, 1983.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

7. Subsection 561.29(1)(b), Florida Statutes, provides in part:

   
   

   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 upon sufficient cause appearing of:

      (b) Violation by the licensee, or if a corporation, by any officers thereof, of any laws of this state . . .

      
      

      Subsection 212.14(3), Florida Statutes, provides in pertinent part:

      
      

      Any person or any duly authorized corporation officer or agent, members of any firm or incorporated society, or organization who refuses to make a

      return and pay the taxes due, as required by the department and in the manner and in

      the form that the department may require, or to state in writing that the return is correct to the best of his knowledge and belief, as so required by the department, shall be subject to a penalty of 6 percent per annum of the amount due and shall upon conviction, be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083

      
      

8. Here Respondents have acknowledged they violated the foregoing statute and are accordingly subject to disciplinary action.

   
   

9. There are mitigating circumstances present in the case at bar. The violations were clearly not intentional and were attributable to circumstances beyond Respondents' control. Moreover, Respondents have entered into an arrangement with the Department of Revenue for full repayment of the taxes due. Accordingly, a $100 fine for each establishment is appropriate under the circumstances.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondents be found guilty of violating Subsection

561.29(1)(b), Florida Statutes, and that a $100 fine be imposed upon each, said fine to be paid within fifteen days of the final order entered in this cause.

DONE and ENTERED this 28th day of October, 1983, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 28th day of October, 1983.

COPIES FURNISHED:

James N. Watson, Jr., Esquire 725 South Bronough Street Tallahassee, Florida 32301

Mr. Frank Piehl 4738 Ocean Street

Mayport, Florida 32233

Howard Milan Rasmussen, Director Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 83-002657

Orders for Case No: 83-002657