ANTONIO B. PEREZ, d/b/a )
vs. ) CASE NO. 90-2778
Respondent. )
Pursuant to notice, a formal hearing was conducted in this case on June 14, 1990, at Miami, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances at the hearing were as follows:
For Petitioner: Vidal Marino Velis, Esq.
For Respondent: John B. Fretwell, Esquire
The issue in this case is whether the Petitioner's application for an alcoholic beverage license should be granted or denied.
At the formal hearing in this case, the Petitioner presented the testimony of four witnesses and offered two exhibits, both of which were received in evidence. The Respondent presented the testimony of two witnesses and offered one exhibit, which was received in evidence. At the conclusion of the hearing the parties were allowed 14 days within which to file their proposed recommended orders. The Respondent filed a timely proposed recommended order on June 27, 1990. The Petitioner filed a late proposed recommended order on July 9, 1990.
The Respondent promptly filed a motion seeking to have the Petitioner's proposed recommended order stricken for lateness. By separate order issued today, that
motion has been denied. Both parties submitted proposed findings of fact in their proposed recommended orders. The substance of all findings of fact proposed by both parties has been included in the following findings of fact.
At all times pertinent to this proceeding, Petitioner was a Florida business man who operated initially a business called the International Coffee Shop and Minit Market, located at 1342 Washington Avenue, Miami Beach, Florida, and subsequently a business called Tony Cafeteria, located at 340 1/2 Northwest 12th Avenue, Miami, Florida.
Petitioner was the holder of alcoholic beverage license number 23-8402, Series 1 APS, for the International Coffee Shop and Minit Market on Miami Beach.
Respondent, on May 3, 1988, served on Petitioner an emergency order of suspension of license number 23-8402, series 1 APS, "in order to protect the public safety and welfare from immediate and continuing danger of drug trafficking and illegal delivery of controlled substances in and about the licensed premises." Concurrently with the emergency order of suspension, Respondent served a notice to show cause on Petitioner alleging eight counts of narcotics transactions on the licensed premises and one count of maintaining a nuisance of the licensed premises.
Petitioner did not request a hearing on the charges that resulted in the emergency order of suspension and the notice to show cause. On June 27, 1988, Respondent published its Final Order revoking Petitioner's alcoholic beverage license number 23-8402, Series 1 APS. The Final Order was served on Petitioner on July 5, 1988. That Final Order included the following conclusion:
The facts set forth hereinabove
demonstrate that the licensee has fostered, condoned, and/or negligently overlooked trafficking in and use of illegal narcotics and controlled substances on or about the licensed premises and has failed to exercise due diligence in supervising its employees and managing its licensed premises so as to prevent the illegal trafficking and use of narcotics on the licensed premises.
In addition to the narcotics violations described in the notice to show cause regarding the International Coffee Shop and Minit Market, alcoholic beverages were being sold for consumption on Petitioner's licensed premises, and patrons on the licensed premises were gambling on pool games.
The International Coffee Shop and Minit Market was located near a large elementary school. The cocaine transactions negotiated and consummated on the licensed premises during April 1988 were open and in plain view. No effort was made to conceal these activities. Children were frequently on the licensed premises during April 1988 when cocaine transactions were being openly negotiated and consummated.
The first cocaine transaction at the International Coffee Shop and Minit Market during Officer Santana's undercover investigation was between Officer Santana and a patron named Clara Rodriguez. The transaction took place just inside the entrance of the International Coffee Shop and Minit Market,
lighting conditions were good, and no effort was made to conceal the transaction. Petitioner was standing immediately next to Officer Santana when the cocaine transaction took place. Petitioner made no effort to stop the transaction, or to summon law enforcement, or to evict Ms. Rodriguez or Officer Santana. Petitioner commented, in Spanish, that "if you're not going to eat or drink anything, you're going to have to leave," or words to that effect.
During the 13 days following the cocaine transaction described immediately above, seven additional cocaine transactions were openly conducted on the premises of the International Coffee Shop and Minit Market:. Four of these transactions were permitted by Petitioner's employee Estella; three were permitted by Petitioner's employee Angel. Five patrons, Nuri, Pipo, Maria, Clara, and Betty, were involved in these cocaine transactions.
Petitioner attributes the activity on his licensed premises that resulted in the license revocation to the undesirable neighborhood of the International Coffee Shop and Minit Market and the undesirable persons who frequented the International Coffee Shop. The neighborhood of Tony Cafeteria is no better than the International Coffee Shop neighborhood.
In response to a complaint, Sergeant Herrera and other members of the Miami office of the Division of Alcoholic Beverages and Tobacco went to Tony Cafeteria on December 2, 1989. Petitioner's employee, Ms. Baez, sold a beer to an undercover Law Enforcement Investigator on the premises of Tony Cafeteria. Ms. Baez was cited for selling an alcoholic beverage without a license. Twenty cans and bottles of beer were seized on the premises by the officers.
Petitioner works full time, 40 hours a week, at the Fountainbleau Hilton and is considered by the Head Houseman to be "a fine, dedicated worker." Three friends of Petitioner opined that Petitioner is a trustworthy, moral person. The Petitioner has never been arrested or convicted of any criminal offense. The Petitioner did not have actual knowledge of the narcotics transactions that resulted in the revocation of the alcoholic beverage license at the International Coffee Shop and Minit Market, nor was he aware that any gambling was taking place on the pool tables.
In January 1990, Petitioner was issued a temporary beverage license for Tony Cafeteria, with which he operated until his license application was disapproved by Respondent. During the three-month period he operated with the temporary license he was not cited for violation of the beverage law.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.
Section 561.15, Florida Statutes, reads as follows, in pertinent part:
Licenses shall be issued only to persons of good moral character who are not less than 21 years of age....
(2) * * *
(3) The division may suspend or revoke
the license under the Beverage Law of, or may refuse to issue a license under the Beverage Law to:
(a) Any person, firm, or corporation the license of which under the Beverage Law has been revoked or has been abandoned after written notice that revocation or suspension proceedings had been or would be brought against the license.... (emphasis added)
Section 562.12(1), Florida Statutes 1989, states that:
It is unlawful for any person to sell alcoholic beverages without a license, and it is unlawful for any licensee to sell alcoholic beverages except as permitted by his license, or to sell such beverages in any manner except that permitted by his license, and any licensee or other person who keeps or possesses alcoholic beverages not permitted to be sold by his license, or not permitted to be sold without a license, with intent to sell or dispose of same unlawfully, or who keeps and maintains a place where alcoholic beverages are sold unlawfully, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s.
775.083. (emphasis added)
Rule 7A-1.013, Florida Administrative Code establishes that a 1 APS retail license authorizes the licensee to sell packaged beer only. Sale of beer for consumption on the licensed premises is not permitted under a 1 APS retail license.
Section 849.14, Florida Statutes 1989, states that:
Whoever stakes, bets or wagers any money or other thing of value upon the result of any trial or contest of skill, speed or power or endurance of man or beast, or whoever receives in any manner whatsoever any money or other thing of value staked, bet or wagered, by or for any other person upon any such result, or whoever knowingly becomes the custodian or depository of any money or other thing of value so staked, bet, or wagered upon any such result, or whoever aids, or assists, or abets in any manner in any of such acts all of which are hereby forbidden, shall be guilty of a misdemeanor of the second degree, punishable as provided in s.
775.082 or s. 775.083.
With regard to the provisions of Section 561.15(1), Florida Statutes, it is not disputed that the Petitioner meets the age requirements, and the record as a whole supports a conclusion that the Petitioner is a person of good moral character. In this regard it is specifically noted that, although the Petitioner's earlier alcoholic beverage license was revoked because of narcotics transactions on the licensed premises, the record in this case does not establish that the Petitioner had actual knowledge of the narcotics
transactions, nor does it establish that he fostered or condoned such activities. The most that can be said on the basis of the record in this case is that the Petitioner negligently overlooked such activities at his previous licensed premises and failed to exercise due diligence in supervising and managing the licensed premises. Such negligence and lack of diligence are not indicative of a lack of good moral character, although, as discussed below, they do have a bearing on whether the Petitioner is a suitable alcoholic beverage licensee.
For the reasons discussed immediately above, the Petitioner meets the requirements of Section 561.15(1), Florida Statutes. Nevertheless, under Section 561.15(3), Florida Statutes, the Division of Alcoholic Beverages and Tobacco has been granted the discretionary authority to deny a license to an applicant who has had a previous alcoholic beverage license revoked. The revocation of a prior license is not a total bar to the issuance of a subsequent license, but is a factor which the Division of Alcoholic Beverages and Tobacco may consider in determining to grant or deny a subsequent application. In the exercise of its discretion under Section 561.15(3), Florida Statutes, it is important for the Division of Alcoholic Beverages and Tobacco to keep in mind the basic reasons for the alcoholic beverage license laws. As noted in Permenter v. Younan, 31 So.2d 387 (Fla. 1947):
One of the principal reasons underlying liquor license laws is to restrict liquor traffic to persons of good moral character who may be reasonably expected to keep their business free from greater vices, which have impelled restrictive legislation on the question. (emphasis added)
By the enactment of Section 561.15(3), Florida Statutes, the Florida Legislature has recognized that even among persons of good moral character there are some who are not suitable candidates to be entrusted with the responsibilities associated with the retail sale of alcoholic beverages because they cannot be relied upon to manage their licensed premises in a responsible manner. Such is the case here. The Petitioner is not a bad man; quite the contrary, he appears to be an honest, hard-working person trying his best to improve his lot in life. But he has shown himself to be ineffective in the management and supervision of a business conducting retail sales of alcoholic beverages. Because of his failure to properly supervise his prior licensed premises, "greater vices" were able to take place on those premises. And although the Petitioner appears to be well intentioned, he has not shown that he is now any better able to supervise a business involving the retail sale of alcoholic beverages. To the contrary, as a result of lack of supervision of his current premises, there has already been an incident of illegal sale of alcoholic beverages on these premises. Because of the Petitioner's demonstrated failure to adequately supervise his retail businesses, the Division of Alcoholic beverages should exercise its discretion under Section 561.15(3), Florida Statutes, to deny the pending application.
For all of the foregoing reasons, it is recommended that the Division of Alcoholic Beverages and Tobacco issue a final order in this case denying the Petitioner's application for a alcoholic beverage license.
RECOMMENDED in Tallahassee, Leon County, Florida, this 27th day of July 1990.
MICHAEL M. PARRISH
Filed with the Clerk of the Division of Administrative Hearings this 27th day of July 1990.
John B. Fretwell, Esquire Assistant General Counsel Department of Business Regulation The Johns Building
Joseph A. Sole General Counsel
