STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 91-2091

)

EDWARD LEE HOWELL, d/b/a )

MR. B'S LOUNGE, )

)

Respondent. )

)

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on June 27, 1991, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Nancy C. Waller, Esquire

725 South Bronough Street Tallahassee, Florida 32399-1007

For Respondent: Edward Lee Howell, pro se

1348 Brookhill Drive

Fort Myers, Florida 33916 STATEMENT OF THE ISSUES

The issue is whether respondent's alcoholic beverage license should be disciplined for the reasons stated in the notice to show cause.

PRELIMINARY STATEMENT

By a notice to show cause served on January 28, 1991, petitioner, Department of Business Regulation, Division of Alcoholic Beverage and Tobacco (Division), charged that on December 23, 1990, respondent, Edward Lee Howell d/b/a Mr. B's Lounge, an alcoholic beverage licensee, had violated Section 562.14, Florida Statutes (1989) which in turn constitutes a violation of Subsection 561.29(1)(a), Florida Statutes (1989), by allowing alcoholic beverages to be sold, served or consumed at a time not permitted by county ordinance. The matter was referred by petitioner to the Division of Administrative Hearings on April 1, 1991, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing on April 17, 1991, a final hearing was scheduled on June 27, 1991, in Fort Myers, Florida.

At final hearing, petitioner presented the testimony of Peggy Duffala, a Division investigator, and Sgt. James Nygard and deputy Glenn Craft, both members of the Lee County Sheriff's Department. Also, it offered petitioner's exhibits 1 and 2. Both exhibits were received in evidence. Respondent testified on his own behalf and presented the testimony of Lucy Ribera, a lounge employee.

There is no transcript of hearing. Proposed findings of fact and conclusions of law were filed by petitioner on July 5, 1991. A ruling on each proposed finding has been made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. At all times relevant hereto, respondent, Edward Lee Howell, held alcoholic beverage license number 46-01252, Series 2-COP, issued by petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division). Respondent used the license to sell beer and wine (for on-premises consumption only) at an establishment known as Mr. B's Lounge located at 2712 Towles Street, Fort Myers, Florida.

   
   

2. Because of numerous violent crimes, including murder and robbery, that had occurred in an area around the lounge, the Lee County Sheriff's Department (Department) maintained what it called a "constant area check" in the neighborhood surrounding the bar. Indeed, respondent acknowledged that the most recent murder had occurred across the street just two weeks prior to hearing.

   In all, Department personnel made around twelve visits to the lounge in 1990.

   
   

3. After receiving a report that alcoholic beverages were being sold or consumed after closing hours at respondent's lounge, a deputy sheriff, James Nygard, visited the licensed premises around 3:45 a.m. on December 8, 1990. During that visit, Nygard gave respondent a copy of Lee County Ordinance No. 76-

   9 and read section 4.2 of the ordinance to respondent. That section prohibits the sale, dispensing or consumption of "any type of alcoholic beverage on or off the premises" between the hours of 2:00 a.m. and 7:00 a.m. every day of the week. Howell acknowledged to Nygard that he understood the law. Although Nygard contended that during his visit he observed at least one patron drinking what appeared to be an alcoholic beverage from a beer can, he opted to give Howell only a warning.

   
   

4. At approximately 3:10 a.m. on December 23, 1990, Nygard and another deputy, Glenn Kraft, entered the licensed premises and observed an estimated eighty to one hundred patrons still in the lounge. Nygard also observed two unidentified black males in the crowd lift beer cans to their mouths and take a sip of the contents. Nygard recalled that there was condensation on one of the two cans of beer. However, Nygard did not seize the beer cans as evidence or arrest the two patrons, and there is insufficient evidence, inferential or otherwise, to establish that the drinks being consumed were actually beer. Nygard then asked Howell to step outside where Howell was given a citation for allowing beer to be sold and/or consumed on the licensed premises after 2:00

   a.m. in contravention of Lee County Ordinance 76-9. The parties agree that criminal charges were filed against respondent but later dismissed on the ground Nygard could not prove that the two patrons were actually consuming beer.

5. According to respondent, Nygard was only on the premises for a few seconds before going outside to write up the citation. Howell denied that the customers were drinking beer and pointed out that he has given his four employees strict instructions to stop all beer and wine sales at 1:30 a.m. and to clear the tables of beer cans by 2:00 a.m. After that hour, he operates a dance club until around 4:00 a.m. and sells soft drinks and food to customers.

   
   

6. On July 23, 1990, the Division sent respondent by certified mail an "official notice" relating to a complaint about sales and consumption of alcoholic beverages taking place after 2:00 a.m. Other than that notice, there is no evidence of any other disciplinary action being taken against respondent during the eight years he had held a license.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1989).

   
   

8. As the petitioner in this cause, the Division has the burden of establishing the validity of the charges in the notice to show cause by the preponderance of the evidence.

   
   

9. The notice to show cause alleges that respondent, or his employees, "did sell or permit to be sold, served or consumed, alcoholic beverages, at a time otherwise not provided for by county or municipal ordinance, contrary to F.

   S. 562.14, within 561.(1)(a), Florida Statutes."

   
   

10. Subsection 562.14(1), Florida Statutes (1989) provides in relevant part:

    
    

    1. Except as otherwise provided by county or municipal ordinance, no alcoholic beverages may be sold, consumed, served, or permitted to be served or consumed in any place holding a license under the division between the hours of midnight and 7 a.m. of the following day.

       
       

       Further, Subsection 561.29(1)(a), Florida Statutes (1989) provides in part as follows:

       
       

       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 or found by the division upon sufficient cause appearing of:

          1. violation by the licensee . . . on the licensed premises . . . of any municipal or county regulation in regard to the hours of sale, service, or consumption of alcoholic beverages . . . except that whether or not the licensee (has) been convicted in any criminal court of any violation as set forth in this paragraph shall not be considered in proceedings before the division for

       suspension or revocation except as permitted by chapter 92 or the rules of evidence.

       
       

11. The first issue to be resolved is whether the Division may, under subsection 561.29(1)(a), prosecute a licensee for violating a "county regulation" when the licensee has not been convicted of that offense. Since the statute does not require a "conviction" in order to trigger its provisions, it is concluded that, under the circumstances presented herein, there is no impediment to the Division initiating this action. This is particularly true since an administrative agency may initiate a disciplinary action against a licensee for illicit conduct even when the licensee has received a favorable decision in criminal court on charges arising out of the same conduct. State ex rel De Gaetani v. Driskell, 190 So. 461, 463 (Fla. 1939).

    
    

12. The next issue is whether the agency has sustained its burden of establishing that the licensee permitted the consumption of alcoholic beverages on the licensed premises after 2:00 a.m. on December 23, 1990. Although deputy Nygard's testimony established that two patrons raised cans of beer to their mouths and took a sip of the contents, this does not establish that the contents being consumed were an alcoholic beverage nor, given the penal nature of this proceeding, is it sufficient to raise an inference that illicit conduct occurred. Therefore, the notice to show cause should be dismissed.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that respondent be found not guilty of violating Subsection 561.29(1)(a), Florida Statutes (1989) and the notice to show cause be dismissed with prejudice.

RECOMMENDED this 12th day of July, 1991, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2091

Petitioner:

1. Adopted in finding of fact 1. 2-3. Adopted in finding of fact 4.

1. Partially adopted in finding of fact 4.

2. Adopted in finding of fact 4.

3. Adopted in finding of fact 3.

4. Adopted in finding of fact 2.

COPIES FURNISHED:

Nancy C. Waller, Esquire 725 South Bronough Street Tallahassee, FL 32399-1007

Mr. Edward Lee Howell 1348 Brookhill Drive Fort Myers, FL 33916

Donald D. Conn, Esquire 725 South Bronough Street Tallahssee, FL 32399-1007

Richard W. Scully, Director Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, FL 32399-1007

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-002091

Orders for Case No: 91-002091